The Nealy Case (1989)
How does one prove that a message is a hate message?
Between February 1987 and February 1988, the Church of Jesus Christ Christian-Aryan Nations placed advertisements for its phone service in a local Albertan newspaper called Red Deer Advocate. The communications promoted racial purity and advocated the enforced deportation or at least segregation of the "enemies of racial purity", racially or ethnically "undesirable" immigrant populations. Three callers recorded the messages and then filed complaints against three respondents: the Church, the leader of the church (Terry Long) and the narrator of the messages (Randy Johnston). During a Commission investigation, Randy Johnston admitted to narrating the messages, advertising the number of the Church's phone line in the local paper, and communicating them through his phone which was rented from Alberta Government Phones. He also disclosed that Terry Long had authored the texts and had asked him to narrate, advertise and host them. (Nealy et al. vs the Church of Jesus Christ Christian-Aryan Nations, C.H.R.T. 1989).
- Did the three respondents act in concert to communicate the alleged messages?
- Is Alberta Government telephone a telecommunication undertaking within the legislative authority of Parliament"?
- Does the burden of proof include the establishment of intent, incitement to hatred and victimization?
- Is the proper test for potential reaction the "anybody test"
- Was the matter communicated in the messages "likely to expose a person or person to hatred and contempt" on the grounds of race, colour and national or ethnic origin or religion?
- The Tribunal determined that both the phone messages and the newspaper advertisements explicitly linked the messages to the Church. It also found that Terry Long was the leader of the church, that he wrote the messages, and that he asked Randy Johnston to narrate, record, advertise and communicate them through his own phone line for over a year. It found, therefore, that the Church, Terry Long and Randy Johnston had acted in concert to communicate repeatedly messages over the phone.
- At the time of this ruling, this issue was under review by the Supreme Court of Canada. Unable to anticipate the decision of that court, the Tribunal instead determined that the conditions under which the A.G.T. operated were the same as they were when the Federal Court of Appeal ruled that the AGT was a work within the legislative authority of Parliament [in Alberta Government Telephones v. CNCP Telecommunications and Canadian Radio- Television Commission  2 F. C. 179. A. G. T.]. Since the conditions were the same, the Tribunal ruled that it was still a work within the legislative authority of Parliament.
- The Tribunal determined that the complainant does not have to prove the intent of the sender, the reaction of an actual listener and or the victimization of a protected group. Rather "it is enough to prove that the matter in the messages is more likely than not to spark a positive reaction amongst some of the listeners to it which will likely in turn manifest itself in "hatred" or "contempt" towards the targets of the messages.
- The Tribunal reiterated that when assessing the potential impact of the matter on recipients of it, the test is not "the reasonable listener" but whether there is anybody, even the most malevolent or unthinking person, who might be inspired to treat the targets with hatred or contempt".
- It found that the Church of Jesus Christ Christian-Aryan Nations had violated s. 13 (1) by accepting the testimony of communications specialist Dr. Ravault who testified "that the messages have strong similarities with Nazi propaganda and argue effectively for apartheid. He concluded his evidence by expressing anxiety about where such communications could lead in terms of their impact on frustrated, anxious, disaffected, not to mention maladjusted, minds". These criteria met the potential impact test defined above.