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Last-Modified: 1998/09/21

68.       Consider a few hypothetical scenarios which indicate
how free speech rights could be unjustifiably infringed by
complaints under section 7(1) of the Code, creating opportunities
for factional battles between different groups:
          
          (i)  The Catholic Civil Rights League brings a group
               defamation complaint under section 7(1) against
               Michael Enright and The Globe and Mail over the
               interview, published in The Globe and Mail on May
               10, in which Enright is quoted as calling the
               Catholic Church "the greatest criminal
               organization outside the Mafia." [Tab 13, page 05]
          
          (ii) Anglophones file a complaint against Radio-Canada
               over "Bye Bye 95", which portrayed the Canadians
               headed to the referendum rally in Place du Canada
               as drunks, ignoramouses, racist, hypocrites who
               really despite francophone Quebecers and who plan
               to stuff the ballot boxes."  The scene ended-big
               laugh-with the Canadians being directed off the
               plane in mid-air." [Tab 13, page 12].
          
          (iii)     Certain Sikhs file a complaint against UBC
               and its professor Harhol Oberal, accusing him of
               insulting Sikhs in his book, The Construction of
               Religious Boundaries (Oxford Press), a scholarly
               exploration of Sikh history which they allege
               distort the Sikh religion because it calls into
               question some of the received wisdoms of that
               religion. [Tab 13, pages 32-33, 35]
          
          (iv) Palestinian residents of British Columbia file a
               complaint against the Jewish Western Bulletin over
               a cartoon "Dry Bones" in its February 23, 1993
               issue, Dry Bones:  Question: When are 400
               Palestinians worth more than 400,000 Palestinians
               - Answer: When they're thrown out of Israel
               instead of Kuwait." [Tab 13, page 41]
          
          (v)  A Jewish organization files a complaint against
               the Jewish Western Bulletin over a story reporting
               that a PLO figure has called the Holocaust a
               "Zionist lie";  referring to a report in the july
               1990 issue of "Belsam" that "The lie concerning
               the gas chambers enabled the Jews to establish the
               State of Israel" [Tab 13, page 45]
          
          (vi) Christians file a complaint against the Jewish
               Western Bulletin over a story in its July 29, 1993
               issue headed "Christian teachings aid anti-
               Semitism" [Tab 13, page 49]
          
          (vii)     Agnostics file a complaint against the
               Canadian Jewish Bulletin over a story headlined
               "Intermarriage contrary to survival of Judaism",
               opposing marriage to non-Jews, in which the author
               Rabbi Mark Dratch states:  "In a very unfortunate
               article in The Canadian Jewish News (CJN) we were
               introduced to a number of individuals who have
               found success and satisfaction marrying non-Jews.
               For the life of me I cannot understand why this
               article appeared in this newspaper!  How can The
               CJN legitimize such relationships? How can it
               paint intermarriage in the favourable light in
               which it does."
          
          (viii)    Blacks file a complaint against Garth
               Drabinsky over Show Boat, alleging that it
               perpetuates negative stereotypes of Black people
               and is therefore racist [Tab 13, page 53]
          
          (ix) Gays file a complaint against a newspaper for
               reporting that a member of the Jewish Student
               Federation at York University complained about
               attempts to form an organization of gay and
               lesbian Jews and reported the student saying: "" I
               accept them as individuals without any prejudice,
               but the homosexual act is a capital crime within
               Judaism and its a very contentious issue." [Tab
               13, page 58]

69.       Section 7(1) does not put all groups on an equal
footing in terms of providing an identical opportunity to pursue
group libel complaints.  If section 7(1) authorized a civil court
action, a plaintiff group would merely have to file a writ of
summons and statement of claim against the proposed defendant
individual or group in order to pursue defamation remedies.  A
judge of the court might strike out the writ and statement of
claim, as the Ontario Court did in Elliott, if the impugned
publication was not capable of being defamatory.  However, that
decision to stifle the claim in its infancy would be taken by a
judge; not by a functionary of the court.  The scheme of the
British Columbia Human Rights Code, however, permits a
functionary - the commissioner of investigation and mediation- to
act as a gatekeeper and to dismiss all or part of the complaint
before it reaches the Human Rights Tribunal, the adjudicative
body [section 27(1)].  The potential for the commissioner of
investigation and mediation, (a Cabinet appointee), to exercise
this power on ideological lines is obvious.  It seems likely that
complaints by so-called privileged groups (white males for
example) against minorities will not make it past this gatekeeper
no matter how virulent the expression.

70.       Other intrinsic dangers of group libel claims are
discussed by Edward J. Cleary, in Beyond the Burning Cross, The
First Amendment and the Landmark R.A.V. Case (Toronto: Random
House, 1994), at page 49:
          
          "Noting that "if violent actions could stop
          civil rights demonstrations, the movement for
          racial equality would have been defeated at
          the start", Neier [who lost family members in
          the Holocaust] pointed out that the "pretext
          of listener hostility was employed constantly
          by opponents of the black civil rights
          movement of the 1960s to suppress its
          demonstrations."  As I was to argue in R.A.V.
          from a position of intellectual honesty and
          adherence to principle, Neier spoke from a
          position of authority to those who had
          abandoned him on the left as he protected the
          First Amendment by defending the far right.
          Rejecting the group libel concept from
          Beauharnais, Neier quoted legal philosopher
          Edmond Cahn, who described the necessity for
          vision in considering the consequences of
          such laws:
             
             The officials could begin by
             prosecuting anyone who distributed the
             Christian Gospels, because they contain
             many defamatory statements not only
             about Jews but also about
             Christians...Then the officials could
             ban Greek literature for calling the
             rest of the world "barbarians".  Roman
             authors would be suppressed because
             when they were not defaming the Gallic
             and Teutonic tribes, they were
             disparaging the Italians.  For obvious
             reasons, all Christian writers of the
             Middle Ages and quite a few modern ones
             could meet a similar fate...Then there
             is Shakespeare who openly affronted the
             French, the Welsh, the Danes...Dozens
             of British writers from Sheridan and
             Dickens to Shaw and Joyce insulted the
             Irish...Literally applied, a group
             libel law would leave our bookshelves
             empty and us without a desire to fill
             them."

71.       The Press Council respectfully submits that a group
defamation law is inherently an unreasonable limitation on
freedom of expression, including freedom of the press and other
media of communication.

Unlike The Long-Recognized Civil Cause Of Action In The Courts
For Individual Defamation, Or The Criminal Libel Offences Defined
In  The Federal Criminal Code,  Section 7(1) Of The Human Rights
Code Imposes Strict Liability On The Defendant.

72.       One of the many reasons why section 7(1) of the Human
Rights Code is constitutionally fundamentally flawed is that it
is inspired by the same authoritarian spirit which underlies the
censorship laws of tyrannical regimes.

73.       The closest international parallel to British
Columbia's new censorship law is the key censorship legislation
of South Africa's apartheid regime, the notorious Publications
Act.  Both statutes impose a form of strict liability on the
speaker.  Both statutes reflect complete ignorance of the
principles of fundamental justice.

74.       South Africa's Publications Act 42 of 1974 prohibits
any expression which brings any section of the inhabitants of the
Republic into ridicule or contempt whereas British Columbia's
Human Rights Code prohibits any expression which is likely to
expose a person or group or class of person to hatred or
contempt.

75.       A comparison of the relevant statutory language shows
the startling similarity between apartheid censorship and British
Columbia censorship:
                                  
South Africa:                     British Columbia
                                  
                                  
"Chapter II                       Discriminatory publication
Publications or Objects (ss.8-18)
8.  Production, distribution,     7.(1) No person shall publish,
importation or possess ion           issue or display or cause to
certain publications or objects      be published, issued or
prohibited                           displayed any statement,
                                     publication, notice, sign,
                                     symbol, emblem or other
                                     representation that..
(1) No person shall_              
(a) produce an undesirable        
publication or object;
(b) distribute a publication or   
object, if that publication or
object is in terms of a decision
of a committee undesirable and
that decisions has been made
known by notice in the Gazette;
..
47.  Definitions                  
`produce', in relation to a       
publication or object includes
printing, publishing,
manufacturing, making or
reproducing
`publication or object' includes  
(a) any newspaper published by a  
publisher who is not a member of
the Newspaper Press Union of
South Africa;
(b) any book, periodical,         
pamphlet, poster, or other
printed matter except a poster
issued as an advertisement of a
newspaper published by a
publisher who is a member of the
Newspaper Press Union of South
Africa;
(c) any writing or typescript     
which has in any manner been
duplicated or made available to
the public or any section of the
public;
(d) any drawing, picture,         
illustration, painting, woodcut,
or similar representation;
(e) any print, photograph,        
engraving or lithograph;
(f) any figure, cast, carving,    
statue or model; and
(g) any record, magnetic tape,    
sound-track (except a sound-track
associated with a film) or any
other object in or on which sound
has been recorded for
reproduction;
`publish' in relation to a film,  
includes distributing, selling,   
hiring out or offering or keeping
for sale or hiring out;


76.       As may be seen from the foregoing, the scope of the
prohibition in the South African and British Columbia statutes is
so broad that each captures the dissemination of expression in
any form - books, magazines, films, plays, T-shirts, dolls, toys,
commercial signs, paintings, sculptures, song lyrics, cartoons -
the list is endless.

77.       The definitions of prohibited expression in the South
African and British Columbia statutes are very similar.
  South Africa                       British Columbia
                                     
(2)  For the purposes of this Act    Discriminatory
  any publication or object, film,   publication
  public entertainment or intended   
  public entertainment shall be deemed(b) is likely to expose a
  to be undesirable if it or any partperson or a group or class of
  of it-                             persons to hatred or contempt
                                     because of the race, colour,
(c) brings any section of the        ancestry, place of origin,
inhabitants of the                   religion, marital status,
    Republic into ridicule or        family status, physical or
contempt;                            mental disability, sex,
(d) is harmful to the relations      sexual orientation or age of
between any sections                 that person or that group or
    of the inhabitants of the        class of persons.
Republic

78.       The jurisprudence under the South African statute shows
that "section of the inhabitants of the Republic" is construed to
mean the same thing as "race, colour, ancestry " etc. in the
British Columbia statute.

79.       Reference is made to Louise Silver, A Guide to
Political Censorship in South Africa (April 1984), where the
author discusses the prohibition against publications which bring
"any section of the inhabitants of the Republic into ridicule or
contempt" at pages 43-44:
          "i.  The question to be asked here is whether
            any section of the population, as defined
            above, is involved; for example, blacks,
            Afrikaners, English-speaking South
            Africans, Jews, etc.
          ii.  "Ridiculing" and "bringing into
            contempt" have a narrow meaning.  Ordinary
            scorn or political criticism is not
            sufficient for a finding of
            undesirability.
          iii.  The test of a reasonable person who
            takes the feelings of the relevant section
            of the population into account is
            applicable here. The usual mitigating and
            aggravating circumstances also apply here.
          Section 47(2)(d)
          National relationships
          i.   The first question to be asked is
            whether sections of the population are
            involved here.
          ii.  The next question is whether the
            publication (etc.) will, in terms of
            probability, have the real effect of
            harming relations or of contributing to
            the harming of relations.  Will it,
            therefore, drive sections of the
            population further apart or cause further
            confrontation?
          iii. It should be borne in mind that biting
            and emotional language is a typical
            feature of South African political life
            and that sufficient latitude must be
            allowed or political debate, criticism and
            pleas for change."
            
           "The term "ridicule and contempt" has a
          narrow meaning in that in order to fall
          within this definition, matter must contain a
          degrading or humiliating treatment of a
          `section of the inhabitants'  The concept of
          `ridicule and contempt', as it appears in
          para (c), is applied when one group only is
          belittled.  When, however, two groups are
          discussed such humiliation and degradation
          may result in the creation of animosity or
          hostility between `sections of the
          inhabitants' particularly in creating racial
          hostility between blacks and whites.  The
          work will then fall within the ambit of para
          (d)."
          

80.       Silver discusses the application of South Africa's
Publications Act to a publication that was found to have
infringed the censorship law because it would engender animosity
towards the Jewish section of the South African community [at
pages 50-51]:
          
          "So, too, an attack on Prime Minister Begin
          in a propaganda pamphlet $48,000 Reward
          (202/82), published by a Muslim publisher,
          was held to engender animosity towards the
          Jewish section of the South African community
          and against the Muslim section of the South
          African community.
             
             It is not for this Board to go into the
             merits, truths, or untruths in this
             publication.  It is common knowledge
             that atrocities did take place in
             Lebanon, that there was a Commission of
             Inquiry appointed by the Israeli
             Government and that its report led to
             the removal of Mr. Sharon from his post
             as Minister of Defence.  Criticism
             against what had taken place in Lebanon
             cannot and should not be stifled, and
             this is not the problem that the
             present publication gives rise to.. The
             question is, however, whether a
             substantial number of South African
             Jews identify themselves so much with
             the Jewish cause that this publication,
             which emanates from an Islamic
             organisation in South Africa (which
             does not, of necessity, represent the
             views of all Muslims), would engender
             or contribute substantially towards
             animosity against Muslims as a section.
             That strong criticism may be lodged
             against the action taken in Lebanon and
             that photographs of what took place may
             be published appears clearly from the
             Time magazine.  The recent publication
             is a pamphlet with a large likely
             readership.  It is a direct and
             straightforward means of communication,
             which not only criticises the actions
             of Prime Minister Begin, and Mr. Sharon
             but draws in the Jewish nation as a
             whole by calling the massacre a
             repetition of what took place in the
             history of the Jews.  As indicated
             above, it is unnecessary to decide
             whether these statements are offensive
             to the religious convictions or
             feelings of the Jews.  What must and
             can, however, be deduced from this page
             is that the attack goes much further
             than an attack on Prime Minister Begin.
             If all this were to have been said in a
             typical debate on this issue, it would
             have been found to be not undesirable.
             The same criticism could even have been
             found to be not undesirable if it were
             to have been published in a different
             kind of publication, such as a news
             magazine or, of course, a more academic
             publication.  The publication, however,
             is calculated to humiliate not only the
             leadership of Israel but the Jewish
             people themselves, wherever they live.
             The Board is convinced that no South
             African Jew would condone the
             atrocities which took place in Lebanon,
             and this is also borne out by the
             findings of the Israeli Commission of
             Inquiry.  However, the present manner
             of sensational, humiliating, and
             degrading, pamphleteering makes the
             publication undesirable.  A substantial
             number of South African Jews would, as
             a result of the manner of publication,
             experience an emotional reaction,
             which, on the probabilities, would give
             rise to deep-seated reactions and
             feelings, which in turn, would engender
             or contribute substantially towards
             animosity against the Muslim section of
             the community of the Republic.  Even if
             it is accepted that the views could be
             attributed only to the present
             publisher, he has drawn in the Muslim
             community as a whole and would, on the
             probabilities, contribute to animosity
             or engender animosity towards the
             Jewish section of the South African
             community.
          
          The Board is accordingly of the view that the
          publication is harmful to relations between
          South African Jews and South African Muslims
          and is accordingly undesirable within the
          meaning of s. 47(2)(d) of the Publications
          Act 1974."

81.       The Press Council respectfully submits that British
Columbians do not deserve to be subjected to the censorship
provisions of the Human Rights Code any more than South Africans
should have been subjected to the provisions of their Publication
Act during the abuses of apartheid.  Before the 1993 amendment to
the Human Rights Code, the counterpart provision to section 7
read as follows:
          Discriminatory publication
          2.   (1) No person shall publish or display before the public, or
            cause to be published or displayed before the public, a notice,
            sign, symbol, emblem or other representation indicating
            discrimination or an intention to discriminate against a person
            or class of persons in any manner prohibited by this Act.
                (2) Notwithstanding subsection (1), but subject
          to the Civil Rights Protection Act, a person may, by
          speech or in writing, freely express his opinions on a
          subject.  [our emphasis added]

82.       The predecessor section recognized a defence of
expression of opinion which, if it had been preserved in the
current Human Rights Code, would have distinguished the British
Columbia statute from its South African counterpart and made
B.C.'s law more suitable to a free and democratic society.


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