Archive/File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press_Council-Submission.10
Last-Modified: 1998/09/21

207.      Rand J. (Kellock J. concurring) stated at pages 356-
358:
          
          For the past century and a half in both the United
          Kingdom and Canada, there has been a steady
          removal of restraints on this freedom [of study,
          discussion or dissemination of views or opinions
          on any matter], stopping only at perimeters where
          the foundation of the freedom itself is
          threatened.  Apart from sedition, obscene writings
          and criminal libels, the public law leaves the
          literary, discursive and polemic use of language,
          in the broadest sense, free.
          
          The object of the legislation here, as expressed
          by the title, is admittedly to prevent the
          propagation of Communism and Bolshevism, but it
          could just as properly have been the suppression
          of any other political, economic or social
          doctrine or theory_The aim of the statute is, by
          means of penalties, to prevent what is considered
          a poisoning of men's minds, to shield the
          individual from exposure to dangerous ideas, to
          protect him, in short, from his own thinking
          propensities.  There is nothing of civil rights in
          this; it is to curtail or proscribe these freedoms
          which the majority so far consider to be the
          condition of social cohesion and its ultimate
          stabilizing force.
          
          Whatever the deficiencies in its workings,
          Canadian Government is in substance the will of
          the majority expressed directly or indirectly
          through popular assemblies.  This means ultimately
          government by the free public opinion of an open
          society, the effectiveness of which, as events
          have not infrequently demonstrated, is undoubted.
          
          But public opinion, in order to meet such a
          responsibility, demands the condition to the
          virtually unobstructed access to and diffusion of
          ideas. Parliamentary government postulates a
          capacity in men, acting freely and under self-
          restraints, to govern themselves; and that advance
          is best served in the degree achieved of
          individual liberation from subjective as well as
          objective shackles.  Under that Government, the
          freedom of discussion in Canada, as a subject
          matter of legislation, has a unity of interest and
          significance extending equally to every part of
          the Dominion.  With such dimensions it is ipso
          facto excluded from head 16 as a local matter.
          
          This constitutional fact is the political
          expression of the primary condition of social
          life, thought and its communication by language.
          Liberty in this is little less vital to man's mind
          and spirit than breathing is to his physical
          existence.  As such an inherence in the individual
          it is embodied in his status of citizenship.
          Outlawry, for example, divesting civil standing
          and destroying citizenship, is a matter of
          Dominion concern.  Of the fitness of this order of
          Government to the Canadian organization, the words
          of Taschereau J. in Brassard v Langevin (1877), 1
          S.C.R. 145 at page 195 should be recalled:  "The
          object of the electoral law was to promote, by
          means of the ballot, and with the absence of all
          undue influence, the free and sincere expression
          of public opinion in the choice of members of the
          Parliament of Canada.  This law is the just
          sequence to the excellent institutions which we
          have borrowed from England, institutions which, as
          regards civil and religious liberty, leave to
          Canadians nothing to envy in other countries."
          
          Prohibition of any part of this activity as an
          evil would be within the scope of criminal law, as
          ss. 60, 61, and 62 of the Cr. Code dealing with
          sedition exemplify.  Bearing in mind that the
          endowment of parliamentary institutions is one and
          entire for the Dominion, that Legislatures and
          Parliament are permanent features of our
          constitutional structure, and that the body of
          discussion is indivisible, apart from the
          incidence of criminal law and civil rights, and
          incidental effects of legislation in relation to
          other matters, the degree and nature of its
          regulation must await future consideration;  for
          the purposes here it is sufficient to say that it
          is not a matter within the regulation of a
          Province.

208.      Kellock J, in addition to concurring in the judgment of
Rand J., added the following observations:
          
          In my opinion, legislation of the character of
          that here in question cannot be supported as being
          in relation to civil rights in the Province within
          the meaning of head 13 of s.92 of the B.N.A. Act,
          and equally, it cannot be said to be in relation
          to matters of a merely local or private nature in
          the Province.

209.      Mr. Justice Fauteux suggested that such an Act could
not come under section 92(16) of the BNA Act as a `local matter'
within provincial jurisdiction, because the propagation of an
"idea" could hardly be considered to be a "local matter."  At
pages 366-367 Fauteux J. states:
          
          To attempt to prove that Communist propaganda is a
          local matter would be an insuperable task.  In its
          essence, the doctrine itself has an international
          feature.  But it is said there exists in the
          Province of Quebec, contrary to what may be the
          situation in the rest of Canada, a special need
          for protecting the people of that Province from
          Communistic propaganda.  This assertion is perhaps
          more ingenious than flattering but it has not been
          proved.
          
          _
          
          Whether there exists, in this country, an active
          Communistic propaganda or not; whether the
          propagandists' invitations are effective or not;
          whether there ensues some danger or a possibility
          of danger or not; whether it is advisable or not
          for the law-maker to avert this danger or
          possibility of danger by adding, to the measures
          already enacted against sedition, coercive
          measures of censorship and distraint upon the
          person and upon property, as provided in the Act
          under question, instead of leaving it to the well
          informed conscience of citizens to reject or
          oppose the invitations of such propaganda,
          questions of this kind, by reason of the
          separation of powers, are beyond the power of a
          Court to consider and are and remain exclusively
          within the jurisdiction of the law-makers.  In our
          federative system of Government, where legislative
          authority is divided, according to the subject-
          matter of the law, between Parliament, on the one
          hand, and the Legislatures of ten Provinces, on
          the other hand, the legislative body which, under
          the Constitution, is invested exclusively with
          that legislative competence as well as the
          responsibility and the right to establish and
          control the means to satisfy this responsibility,
          alone has jurisdiction to consider and decide such
          questions.  These questions, which rise to the
          dimensions of the safety of the state, cannot be
          considered "matters of a merely local or private
          nature in the Province" nor held to be in relation
          with "Property and Civil Rights in the Province".
          The power that a Legislature may have to enact the
          civil consequences of a crime established by the
          competent authority, or to suppress the conditions
          leading to that crime, does not include that of
          creating a crime for the prevention of another
          validly established; such as, for example, the
          crime of sedition.

210.      Accordingly, with only one dissent, the Supreme Court
of Canada struck down the Padlock law on the ground that it was
legislation with respect to criminal law, within federal
jurisdiction, and beyond the powers of the province.

211.      In Gay Alliance Towards Equality v Vancouver Sun;
British Columbia Human Rights Commission v Vancouver Sun, [1979]
2 S.C.R. 435, the appellant, a homosexual organization, submitted
an advertisement to the newspaper, advertising its publication in
the following terms:

          "Subs to Gay Tide, gay lib paper $1.00 for 6 issues.
2146 Yew St. 212.   Vancouver."

213.      The Vancouver Sun refused to publish it.  The appellant
complained to the British Columbia Human Rights Commission which
appointed a board of inquiry to investigate.  The newspaper
contended that it was entitled to reject the advertisement on the
grounds that homosexuality is offensive to public decency and
that the newspaper had a duty to protect the morals of the
community.  The board of inquiry held that publication of
advertisements in the newspaper was a "service or facility
customarily available to the public", that the newspaper had
discriminated against the appellant contrary to the Human Rights
Code, and that its reasons for refusal to publish did not
constitute a reasonable cause for the refusal to publish.  The
decision was upheld by the Supreme Court of British Columbia but
reversed on appeal.  On appeal to the Supreme Court of Canada,
the majority (6-3) sustained the newspaper's right to refuse the
advertisement.

214.      Martland, J (Ritchie, Spence, Pigeon, Beetz and Pratte
JJ. concurring), writing the majority judgment of the Supreme
Court of Canada, described the issues on appeal in the following
terms at 589:
          
          The first two questions of law...raise a serious
          issue as to the extent to which the discretion of
          a newspaper publisher to determine what he wishes
          to publish in his newspaper has been curtailed by
          the Human Rights Code.  Is his decision not to
          publish some item in his newspaper subject to
          review by a board of inquiry set up under the Act,
          with power, if it considers his decision
          unreasonable, to compel him to publish that which
          he does not wish to publish?

215.      Martland J. then continued at pages 589-591:
          
          The Supreme Court of the United States, in 1974,
          in Miami Herald Publishing Co. v Tornillo, 418
          U.S. 241, had to consider whether a Florida
          statute violated the First Amendment's guarantee
          of freedom of the press.  This statute granted to
          a political candidate the right to equal space in
          a newspaper to answer criticism_
          
          The Supreme Court of the United States held that
          the statute under consideration was a violation of
          the First Amendment.  In the course of his reasons
          for judgment, Chief  Justice Burger, who delivered
          the opinion of the Court, said that the statute
          failed to clear the barriers of the First
          Amendment because of its intrusion into the
          function of editors.  He went on to say at p. 258:
            
            A newspaper is more than a passive
            receptacle or conduit of news, comment, and
            advertising.  The choice of material to go
            into a newspaper, and the decisions made as
            to limitations on the size and content of
            the paper, and treatment of public issues
            and public officials - whether fair or
            unfair - constitute the exercise of
            editorial control and judgment.  It has yet
            to be demonstrated how governmental
            regulations of this crucial process can be
            exercised consistent with First Amendment
            guarantees of a free press as they have
            evolved at this time.
          
          The Canadian Bill of Rights, s. 1(f), recognizes
          freedom of the press as a fundamental freedom.
          
          While there is no legislation in British Columbia
          in relation to freedom of the press, similar to
          the First Amendment or to the Canadian Bill of
          Rights, and while there is no attack made in this
          appeal on the constitutional validity of the Human
          Rights Code, I think that Chief Justice Burger's
          statement about editorial control and judgment in
          relation to a newspaper is of assistance in
          considering one of the most essential ingredients
          of freedom of the press.   The issue which arises
          in this appeal is as to whether s. 3 of the Act is
          to be construed as purporting to limit that
          freedom.
          
          _
          
          In my opinion the general purpose of s. 3 was to
          prevent discrimination against individuals or
          groups of individuals in respect of the provision
          of certain things available generally to the
          public_
          
          The case in question here deals with the refusal
          by a newspaper to publish a  classified
          advertisement, but it raises larger issues, which
          would include the whole field of newspaper
          advertising and letters to the editor.  A
          newspaper exists for the purpose of disseminating
          information and for the expression of its views on
          a wide variety of issues.  Revenues are derived
          from the sale of its newspapers and from
          advertising.  It is true that its advertising
          facilities are made available, at a price, to the
          general public.  But the Sun reserved to itself
          the right to revise, edit, classify or reject any
          advertisement submitted to it for publication and
          this reservation was displayed daily at the head
          of its classified advertisement section.
          
          The law has recognized the freedom of the press to
          propagate its views and ideas on any issue and to
          select the material which it publishes.  As a
          corollary to that, a newspaper also has the right
          to refuse to publish material which runs contrary
          to the views which it expresses.  A newspaper
          published by a religious organization does not
          have to publish an advertisement advocating
          atheistic doctrine.  A newspaper supporting
          certain political views does not have to publish
          an advertisement advancing contrary views.  In
          fact, the judgments of Duff, C.J.C., Davis and
          Cannon, JJ., in the Alberta Press case...suggest
          that provincial legislation to compel such
          publication may be unconstitutional.
          
          In my opinion ,the service which is customarily
          available to the public in the case of a newspaper
          which accepts advertising is a service subject to
          the right of the newspaper to control the content
          of such advertising."

The Procedural Safeguards Made Available To A Defendant In A
Civil Court Action For Defamation Are Also Missing From The Human
Rights Code:

(J)  A Single Adjudicator Will Judge What Millions Of British
     Columbians Are Entitled To Hear, Read Or View, (Subject To A
     Narrow Possibility Of Judicial Review.  The Human Rights
     Code Does Not Permit A  Defendant To Be Tried by a Jury
     Drawn From The Community, An Absolute Right Of The Defendant
     In A Civil Court Action;

216.      The Press Council respectfully submits that the Human
Rights Code is deficient in failing to provide to the defendant a
right to have a "group defamation" claim heard by a jury of his
or her peers drawn at random from the electorate to represent the
public and to discharge, upon oath, a public duty to find "libel
or no libel".

217.      Deliberation is a difficult virtue where there is only
one decision-maker.  Only a jury calls upon ordinary citizens to
look objectively at the facts and persuade one another to a
consensus.  In this process, each juror is required to transcend
his or her starting loyalties and to consider how the evidence
may appear to others drawing on different experiences.  Juries
are much better placed than a one-person Tribunal to function as
the conscience of the community.  Aristotle suggested that
democracy's chief virtue was the way it permitted ordinary
persons drawn from different walks of life to achieve a
collective wisdom that none could achieve alone.  The jury
epitomizes a functioning democracy, where the wisdom of ordinary
persons can be directly applied to vexing questions of importance
to the community.

218.      Defamation cases are uniquely suited to be decided by a
jury, which can bring its collective common sense and knowledge
of the community to bear on the task of determining whether a
reasonable, objective person would consider the impugned
publication to be defamatory.  For this reason, in a civil
defamation context, the British Columbia Supreme Court Rules
provide that a party has an absolute right to require a jury
trial in a case of defamation, even if the issues are of such a
complex or intricate character or require prolonged examination
of documents or accounts or a scientific or local investigation:
Rule 39(27).  Indeed, in Mitchell v Nanaimo District Teachers
Assn. (1994), 94 B.C.L.R. (2d) 81, Southin J, speaking for the
majority, dismissed an appeal from a finding by a trial judge,
sitting without a jury, that a cartoon defamed the plaintiff,
stating at 82:  This was not a case which the learned trial judge
could have refused to put to a jury. Being of the opinion that
this publication is capable of bearing a meaning defamatory of
the plaintiff, I am also of the opinion that the learned judge
committed no error revisable by this court when he found that the
publication was, in fact, defamatory of the plaintiff [1993]
B.C.W.L.D. 785.  It is unfortunate that this case was not tried
by a jury.  Upon an issue of "libel or no libel", eight opinions
are better than one.  Had it been, the jury could have returned a
verdict for either plaintiff or defendants, without being
deserving of the epithet "unreasonable."

(K)  The Defendant Has No Right to Appeal From The Verdict Of The
     Human Rights Tribunal To The Courts, Or Even To An Appeal
     Panel In The Human Rights Hierarchy As No Such Appeal Panel
     Exists.  The Defendant May Apply By Petition To The Supreme
     Court Of British Columbia For A "Judicial Review" But That
     Process Involves Significant Limitations Which Would Not
     Apply To A True Right Of Appeal

219.      The dangers inherent in allowing a one-member Tribunal
to adjudicate the "libel or no libel" issue are accentuated by
the absence of any true appeal mechanism within the human rights
hierarchy established by the Human Rights Code.  In contrast,
although it is by no means an adequate solution, the Canadian
Human Rights Act provides a defendant with a right of appeal from
the decision of a single-member tribunal to a Review Tribunal
composed of three members of the Human Rights Tribunal who were
not on the original tribunal whose decision or order is appealed
from:  sections 55, 56. (1).

220.      Further, the aforesaid dangers are aggravated by the
fact that the Human Rights Code makes no provision for an appeal
to the court from an order or decision of the Human Rights
Tribunal.

221.      Compare the following human rights statutes which do
provide a right of appeal:
     
     a)   Alberta, section 33(1): A party to a proceeding before a
          human rights panel may appeal an order of the panel to the Court
          of Queen's Bench by originating notice filed with the clerk of
          the Court of the judicial district in which the proceeding was
          held."  Section 33(4). The Court may (a) confirm, reverse or vary
          the order of the human rights panel and make any order that the
          panel may make_or (b) remit the matter back to the panel with
          directions;
     
     b)   Saskatchewan, section 32(1). Any party to a proceeding
          before a board of inquiry may appeal on a question of law from
          the decision or order of the board to a judge of the Court of
          Queen's Bench _Section 32(4). Where an appeal is taken under this
          section, the judge shall determine any question of law relating
          to the appeal and may affirm or reverse the decision or order of
          the board of inquiry or remit the matter back to the board of
          inquiry for amendment of its decision or order;
     
     c)   Ontario, section 42(1): Any party to a proceeding before a
          board of inquiry may appeal from a decision or order of the board
          to the Division Court in accordance with the rules of court.
          Section 42(3).  An appeal under this section may be made on
          questions of law or fact or both and the court may affirm or
          reverse the decision or order of the board of inquiry or direct
          the board to make any decision or order that the board is
          authorized to make under this Act and the court may substitute
          its opinion for that of the board.
     
     d)   Quebec, section 132.  Any final decision of the [Human
          Rights] Tribunal may be appealed from to the Court of Appeal with
          leave from one of the judges thereof;
     
     e)   Newfoundland, section 30(1).  A party to a proceeding before
          a board of inquiry may appeal an order or decision of the board
          by way of application to the Trial Division.  Section 30(2).
          Where the grounds of the appeal consist wholly or partly of a
          question of fact or of mixed fact and law, an appeal shall not be
          made without leave of a judge of the Trial Division.; section
          30(4) A judge may, after taking into consideration those matters
          that he or she considers appropriate, grant leave to appeal.
          Section 30(7);  The court may confirm, reverse or vary the order
          of the board and may make an order that the board may make.
     
     f)   Nova Scotia, section 36(1).  Any party to a hearing before a
          board of inquiry may appeal from the decision or order of the
          board to the Appeal Division of the Supreme Court on a question
          of law in accordance with the rules of court.  Section 36(4).
          The Appeal Division of the Supreme Court shall hear and determine
          an appeal based upon the record on the appeal.
g)   Northwest Territories, section 8(1).  Any person affected by
an order or decision of a Fair Practices Officer may, at anytime
within 30 days after service of the order, appeal by way of
notice of appeal to a judge of the Supreme Court to vary or set
aside the order or decision.  Section 8(4)  The hearing of an
appeal under this section shall be by a trial de novo.

222.      Accordingly, the only avenue to the courts from a
British Columbia Human Rights Tribunal ruling adverse to the
subject of a complaint is by way of petition for judicial review
under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241.

223.      The standard of review by the court on a judicial
review is much narrower than the standard of review in an appeal
of the decision of an administrative tribunal.  As Gonthier J.
states in Bell Canada v Canada (Canadian Radio-Television &
Telecommunications Commission), [1989] 1 S.C.R. 1722, at pp. 1745-
46:
          
                    It is trite to say that the jurisdiction of a court of
          appeal is much broader than the jurisdiction of a court on
          judicial review.  In principle, a court is entitled, on appeal,
          to disagree with the reasoning of the lower tribunal.
          
               However, within the context of a statutory
          appeal from an administrative tribunal, additional
          consideration must be given to the principle of
          specialization of duties.  Although an appeal
          tribunal has the right to disagree with the lower
          tribunal on issues which fall within the scope of
          the statutory appeal, curial deference should be
          given to the opinion of the lower tribunal on
          issues which fall squarely within its area of
          expertise.

224.      Judicial review differs from an appeal where the
appellate court in some instances may substitute its opinion for
that of an administrative board.  It is important to note,
however, that even in cases where a statutory right of appeal is
granted the Court will not substitute its opinion for that of the
administrative tribunal if the decision was made within its
jurisdiction and within its scope of expertise: Pezim v British
Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 412; Berg v
University of British Columbia, [1993] 2 S.C.R. 353 at 371.

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