Archive/File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press_Council-Submission.09 Last-Modified: 1998/09/21 191. The International Covenant on Civil and Political Rights (16 Dec 66) provides, inter alia: Article 14 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.... Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 27 In those States in which ethnic, religious or linguistic minorities exist persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language." 192. The American Convention On Human Rights "Pact Of San Jose, Costa Rica" (22 Nov 69) provides, inter alia: Article 13. FREEDOM OF THOUGHT AND EXPRESSION. 1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice. 2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: a. Respect for the rights or reputations of others; or b. The protection of national security, public order, or public health or morals. 3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions. 4. Notwithstanding the provisions of paragraph 2 above, public entertainment may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence." 193. The importance of freedom of expression is also the described in a legion of cases decided by Canadian courts before and after the Canadian Charter of Rights and Freedoms came into force in May, 1982. 194. The leading pre-Charter decisions of the Supreme Court of Canada on freedom of expression are the Alberta Press Bill Case, Boucher v The King and Switzman v Elbling. 195. In the Alberta Press Bill Case, [Reference re Alberta Legislation,  S.C.R. 100 ], pursuant to the Supreme Court Act the federal Government referred to the Supreme Court of Canada questions concerning the constitutional validity of certain legislation enacted by the Social Credit Government of Alberta, including An Act to Ensure the Publication of Accurate News and Information. The premable of the "Press bill" recites that it is "expedient and in the public interest that the newspapers published in the Province should furnish to the people of the Province statements made by the authority of the Government of the Province as to the true and exact objects of the policy of the Government and as to the hindrances to or difficulties in achieving such objects to the end that the people may be informed with respect thereto." Per Cannon J. at pages 142-144: Section 3 provides that any proprietor, editor, publisher or manager of any newspaper published in the province shall, when required to do so by the Chariman of the Board constituted by section 3 of the Alberta Social Credit Act, publish in that newspaper any statement furnished by the Chairman which has for its object the correction or amplification of any statement relating to any policy or activity of the government of the province published by that newspaper within the next preceding thirty-onee days. And section 4 provides that the proprietor, etc., of any newspaper upon being required by the Chairman in writing shall within twenty-four hours after the delivery of the requirement make a return in writing setting out every source from which any information emanated, as to any statement contained in any issue of the newspaper published within sixty days of the making of the requirement and the names, addresses and occupations of all persons by whom such information was furnished to the newspaper and the name and address of the writer of any editorial, article or news item contained in any such issue of the newspaper. Section 5 denies any action for libel on account of the publication of any statement pursuant to the Act. Section 6 enacts that in the event of a proprietor, etc., of any newspaper being guilty of any contravention of any of the provisions of the Act, the Lieutenant-Governor-in-Council, upon a recommendation of the Chairman, may by order prohibit, (a) the publication of such newspaper either for a definite time or until further order; (b) the publication in any newspaper of anything written by any person specified in the order; (c) the publication of any information emanating from any person or source specified in the order. Section 7 provides for penalties for contraventions or defaults in complying with any requirement of the Act. The policy referred to in the preamble of the Press bill regarding which the people of the province are to be informed from the government standpoint, is undoubtedly the Social Credit policy of the government. The administration of the bill is in the hands of the Chairman of the Social Credit Board who is given complete and discretionary power by the bill. "Social Credit," according to sec. 2(b) of ch. 3, 1937, second session, of The Alberta Social Credit Amendment Act is the power resulting from the belief inherent within society that its individual members in association can gain the objectives they desire; and the objectives in which the people of Alberta must have a firm and unshaken belief are the monetization of credit and the creation of a provincial medium of exchange instead of money to be used for the purposes of distributing to Albertans loans without interest, per capita dividends and discount rates to purchases goods from retailers_The pith and substance of the bill is to regulate the press of Alberta from the viewpoint of public policy by preventing the public from being misled or deceived as to any policy or activity of the Social Credit Government and by reducing any opposition to silence or bring upon it ridicule and public contempt_.I agree with the submission of the Attorney-General for Canada that this bill deals with the regulation of the press of Alberta, not from the viewpoint of private wrongs or civil injuries resulting from any allged infringement or privation of civil rights which belong to individuals, considered as individuals, but from the viewpoint of public wrongs or crimes, i.e. involving a violation of the public rights and duties to the whole community, considered as a community, in its social aggregate capacity. 196. In addition to Cannon J, the panel of the Supreme Court of Canada that heard this case consisted of Duff, C.J. and Crocket, Davis, Kerwin, and Hudson JJ. With respect to the Accurate News and Information Act, the panel unanimously determined that it was ultra vires the Legislature of Alberta but for varying reasons. 197. Mr. Justice Cannon emphasized the fundamental nature of freedom of speech and found the Accurate News and Information Act to be an attempt "to revive the old theory of the crime of seditious libel" for actions which "after due consideration by the Dominion Parliament, have been declared innocuous and which, therefore, every citizen of Canada can do lawfully and without hindrance or fear of punishment". Cannon J continued in the following terms [at 145-146]: "Freedom of discussion is essential to enlighten public opinion in a democratic State; it cannot be curtailed without affecting the right of the people to be informed through sources independent of the government concerning matters of public interest. There must be an untrammeled publication of the news and political opinions of the political parties contending for ascendancy...Democracy cannot be maintained without its foundation: free public opinion and free discussion throughout the nation of all matters affecting the State within the limits set by the criminal code and the common law. Every inhabitant in Alberta is also a citizen of the Dominion. The province may deal with his property and civil rights of a local and private nature within the province; but the province cannot interfere with his status as a Canadian citizen and his fundamental rights to express freely his untrammeled opinion about government policies and discuss matters of public concern. The mandatory and prohibitory provisions of the Press Bill are ..ultra vires of the provincial legislature. they interfere with the free working of the political organization of the Dominion...the federal parliament is the sole authority to curtail, if deemed expedient and in the public interest, the freedom of the press in discussing public affairs and the equal rights in that respect of all citizens throughout the dominion." 198. Chief Justice Duff (Davis J concurring), was also of the opinion that the Press bill was an invasion of the liberty of the press and of the right of public discussion, which a provincial legislature did not have the authority to limit. Per Duff C.J. at pages 133-135: [The British North America Act] contemplates a parliament working under the influence of public opinion and public discussion. There can be no controversy that such institutions derive their efficacy from the free public discussion of affairs, from criticism and answer and counter- criticism, from attack upon policy and administration and defence and counter-attack; from the freest and fullest analysis and examination from every point of view of political proposals. This is signally true in respect of the discharge by Ministers of the Crown of their responsibility to parliament, by members of Parliament of their duty to electors, and by the electors themselves of their responsibilities in the election of their representatives. The right of public discussion is, of course, subject to legal restrictions; those based upon considerations of decency and public order, and others conceived for the protection of various private and public interests with which, for example, the laws of defamation and sedition are concerned. In a word, freedom of discussion means, to quote the words of Lord Wright in James v Commonwealth  AC 578 at 627], `freedom governed by law.' Even within its legal limits, it is liable to abuse and grave abuse, and such abuse is constantly exemplified before our eyes; but it is axiomatic that the practice of this right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions. ..Any attempt to abrogate this right of public debate or to suppress the traditional forms of the exercise of the right (in public meeting and through the press) would, in our opinion, be incompetent to the legislatures of the provinces, or to the legislature of any one of the provinces, as repugnant to the provisions of The British North America Act, by which the Parliament of Canada is established as the legislative organ of the people of Canada under the Crown, and Dominion legislation enacted pursuant to the legislative authority given by those provisions_ Some degree of regulation of newspapers everybody would concede to the provinces. Indeed, there is a very wide field in which the provinces undoubtedly are invested with legislative authority over newspapers; but the limit, in our opinion, is reached when the legislation effects such a curtailment of the exercise of the right of public discussion as substantially to interfere with the working of the parliamentary institutions of Canada_ 199. Crocket, Kerwin and Hudson JJ. did not specifically discuss free speech concerns but rather struck down the Accurate News and Information Act on the ground it formed part of the general scheme of social credit legislation which was ultra vires as a whole. 200. In the 1950 decision of the Supreme Court of Canada in Boucher v The King , S.C.R. 265, the majority (5-4) set aside the conviction of the accused, a Jehovah's Witness, for seditious libel arising from the distribution in Quebec of a pamphlet published by the Watch Tower Bible and Truth Society. Discussing the nature of "seditious intent", an essential ingredient of the Criminal Code offence of seditious libel, Kerwin J. adopted the following definition: A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against the person of, His Majesty_or the government and constitution of the United Kingdom, as by law established, or either House of Parliament, or the administration of justice, or to excite His Majesty's subjects to attempt otherwise than by lawful means, the alteration of any matter in Church or State by law established, or to incite any person to commit any crime in disturbance of the peace, or to raise discontent or disaffection amongst His Majesty's subjects, or to promote feelings of ill-will and hostility between different classes of such subjects. An intention to show that His Majesty has been misled or mistaken in his measures, or to point out errors or defects in the government or constitution as by law established, with a view to their reformation, or to excite His Majesty's subjects to attempt by lawful means the alteration of any matter in Church or State by law established, or to point out, in order to their removal, matters which are producing, or have tendency to produce, feelings of hatred and ill-will between classes of His Majesty's subjects, is not a seditious intention. 201. Kerwin J. held that the trial judge had erred by failing to put the issue of good faith accurately to the jury: The use of strong words is not by itself sufficient nor is the likelihood that readers of the pamphlet _would be annoyed or even angered, but the question is, was the language used calculated to promote public disorder or physical force or violence. In coming to a conclusion on this point, a jury is entitled to consider the state of society or, as it is put by Chief Justice Wilde in his charge to the jury in The Queen v Fussell [(1848) 6 St. Tr. (N.S.) 723 at 762] You cannot, as it seems to me, form a correct judgment of how far the evidence tends to establish the crime imputed to the defendant, without bringing into that box with you a knowledge of the present state of society, because the conduct of every individual in regard to the effect which that conduct is calculated to produce, must depend upon the state of the society in which he lives. This may be innocent in one state of society, because it may not tend to disturb the peace or to interfere with the right of the community, which at another time, and in a different state of society, in consequence of its different tendency, may be open to just censure. 202. Accordingly, Kerwin J. held the conviction should be quashed and directed that there be a new trial. 203. In separate reasons allowing the appeal but directing a verdict of acquittal, Rand J.traced the history of seditious libel and free speech in the following terms [at 285: Up to the end of the 18th century [seditious libel] was, in essence, a contempt in words of political authority or the actions of authority. If we conceive of the governors of society as superior beings, exercising a divine mandate, by whom laws, institutions and administrations are given to men to be obeyed, who are, in short, beyond criticism, reflection or censure upon them or what they do implies either an equality with them or an accountability by them, both equally offensive. In that lay sedition by words and the libel was its written form. But constitutional conceptions of a different order making rapid progress in the 19th century have necessitated a modification of the legal view of public criticism; and the administrators of what we call democratic government have come to be looked upon as servants, bound to carry out their duties accountable to the public. 204. Discussing the scope of freedom of expression, Rand J. continued at page 288: There is no modern authority which holds that the mere effect of tending to create discontent or disaffection among His Majesty's subjects or ill- will or hostility between groups of them, but not tending to issue in illegal conduct, constitutes the crime [of seditious libel], and this for obvious reasons. Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life. The clash of critical discussion on political, social and religious subjects has too deeply become the stuff of daily experience to suggest that mere ill-will as a product of controversy can strike down the latter with illegality...Controversial fury is aroused constantly by differences in abstract conceptions: heresy in some fields is again a mortal sin; there can be fanatical Puritanism in ideas as well as in morals; but our compact of free society accepts and absorbs these differences and they are exercised at large within the framework of freedom and order on broader and deeper uniformities as bases of social stability. Similarly in discontent, affection and hostility: as subjective incidents of controversy, they and the ideas which arouse them are part of our living which ultimately serve us in stimulation, in the clarification of thought and, as we believe, in the search for the constitution and truth of things generally." 205. The accused in Boucher was given a directed acquittal by the majority of the Court. 206. In the so-called Padlock Case [Switzman v Elbling  7 D.L.R. (2d) 337], the Supreme Court of Canada sitting as the full court held that a Quebec statute, The Communistic Propaganda Act, was ultra vires the provincial government as matter involving criminal law. The statute made it illegal for a person who possesses or occupies a house to use it or allow its use to propagate Communism or Bolshevism and unlawful to print or publish or distribute any newspaper or document or writing propagating or tending to propagate Communism or Bolshevism, on pain of imprisonment. The act empowered the Attorney-General to make a closing order for a period of not more than one year if a house was used in violation of the prohibition..
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