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                             - 88 -
Document:  243310: 02
                                

                  CANADIAN JEWISH CONGRESS  vs

    NORTH SHORE FREE PRESS doing business as NORTH SHORE NEWS

                              -AND-

                          DOUG COLLINS

 SUBMISSIONS OF THE BRITISH COLUMBIA PRESS COUNCIL (INTERVENOR)



MAY IT PLEASE THIS TRIBUNAL



Introduction


1.         The  speech restrictions in section 7(1) of the  Human
Rights  Code of British Columbia raise such important  issues  of
constitutional  law that the British Columbia  Press  Council  is
determined  that there be no misunderstanding about  their  exact
nature or about their disturbing implications for the survival of
free speech - the most important right of a people in a free  and
democratic society as it is the foundation of all other rights.

2.          The  gravity  of  the  threat  is  obvious  from  the
historical  context  of  this hearing.   Since  British  Columbia
joined the Canadian Confederation in 1871, no other newspaper has
ever  been  compelled  to  appear before  a  government-appointed
tribunal, other than a court, to defend an opinion column against
an  accusation  that it violated content standards prescribed  by
statute. Nor does it appear that there is precedent for a hearing
of  this nature in the history of any other part of Canada before
or  after  Confederation.   No  evidence  was  tendered  to  this
Tribunal  that  any other free and democratic  country  has  ever
compelled a newspaper to submit to such a non-judicial hearing.

3.         The British Columbia Press Council therefore makes  no
apology for treating this situation as the most serious threat to
press  freedom in Canada since Alberta's Social Credit government
enacted its so-called Accurate News and Information Act in  1937.
That  Alberta statute, which sought among other things to  compel
newspapers  to  print the government's response to critical  news
stories  and  to divulge their sources, was struck  down  by  the
Supreme Court of Canada in 1938.

4.         Contrary  to the way others describe the issues,  this
hearing  is  not about whether there should be laws against  hate
speech.  This  hearing is not about whether Doug Collins'  column
entitled  "Swindler's List" is so distasteful that it and  others
like  it  should  be banned.  This hearing is not  about  whether
Canadians  should  have the same generous free speech  rights  as
Americans.  This hearing is not about whether freedom  of  speech
should be absolute.

5.         The true question for judgment in this case is whether
the  specific censorship law defined by section 7(1)  of  British
Columbia's Human Rights Code is a lawful speech restriction in  a
free  and  democratic society.  The Government  admits  that  its
wording  infringes the free speech guarantee in section 2(b)  the
Canadian  Charter of Rights and Freedoms, which is  part  of  the
supreme law of Canada.  The Press Council says unequivocally that
section  7(1)  is  not  a reasonable or a demonstrably  justified
violation of the free speech rights of its member newspapers  and
others  who work or live within the boundaries of this  province.
Under   this   Code,  British  Columbia  is  the  only   Canadian
jurisdiction  which  prohibits "discriminatory"  publications  in
newspaper   articles  and  editorials  without   stipulating   an
exemption for the free expression of opinion.

6.         The  Press  Council  acknowledges  that  there  is   a
considerable emotion and controversy surrounding Mr. Collins  and
his  writing  but that must not distract this Tribunal  from  the
task  of assessing the constitutionality of section 7(1)  of  the
Human  Rights  Code  in accordance with the  rigorous  principles
prescribed by the Supreme Court of Canada in recent judgments and
with  regard to the wealth of legal, philosophical and historical
support  for  the primacy of free speech rights  in  a  free  and
democratic society.

7.         The  Press Council does not presume to criticize  this
Tribunal in any personal sense, and therefore intends no personal
offence  by  stating  its  position that  this  proceeding,  from
beginning  to end, has been an intolerable violation  of  Charter
free  speech rights and that the speech restrictions in the Human
Rights  Code are an affront and insult to every resident of  this
Province.  This  hearing is exactly the result which  would  have
occurred,  and  been  in  harmony  with,  the  workings   of   an
authoritarian and shackled society.

8.         Freedom of expression, the foundation of all our other
freedoms,  is our most valuable heritage from English  law.   Now
guaranteed by section 2 (b) of the Canadian Charter of Rights and
Freedoms,  this freedom was first wrested from the political  and
social  elites  by  brave printer-publishers  in  the  eighteenth
century;   its   foundation  was  subsequently  strengthened   by
extraordinary  people who defied orthodoxy in religion,  politics
and  science; and its vital importance was recently confirmed  by
the  sacrifices of our armed forces who battled fascism in  World
War II.

9.         Free  speech is nevertheless a fragile freedom.   Like
other   constitutional  rights,  it  is  in  most   danger   when
governments  proceed, little by little, and often for  ostensibly
benevolent  purposes, to erode its boundaries.  In  the  case  of
hate  speech,  the Human Rights Code restrictions  on  expression
represent   the   culmination  of   a   series   of   legislative
encroachments, partly federal and partly provincial,  which  have
finally   reached  the  point  where  dissident   expression   is
threatened  with extinction.  Section 7(1) is an  outrageous  law
that  it  is  but one small step removed from a law which  simply
says:   "If  there is a complaint about speech, government  shall
gag the speaker."

10.        Although the authorities are legion, the Press Council
invokes  the following judicial statements to define  the  themes
which permeate this submission:
       
                 Experience should teach us to be most on our guard to
          protect liberty when the government's purposes are beneficent.
          Men born to freedom are naturally alert to repel invasion of
          their liberty by evil-minded rulers.  The greatest dangers to
          liberty lurk in insidious encroachment by men of zeal, well-
          meaning, but without understanding. : Olmstead United States of
          America, 277 U.S. 438, per Mr. Justice Louis Brandeis.
          
       
         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 a
          crime, 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 the truth of things
          generally:
          
       
         R. v Boucher, [1951] S.C.R. 265, per Mr.
          Justice Rand at 288.
          
       
         Freedom of expression constitutes one of the
          essential foundations of a democratic society
          and one of the basic conditions for its
          progress and each individual's self-
          fulfilment...it is applicable not only to
          "information" or "ideas" that are favourably
          received or regarded as inoffensive or as a
          matter of indifference, but also to those
          that offend, shock or disturb; such are the
          demands of that pluralism, tolerance and
          broadmindedness without which there is no
          "democratic society".  European Court of
          Human Rights, Vogt v Germany
          (7/1994/454/535), Grand Chamber, at 20
          
       
         General censure or reproof, satire or
          invective, directed against large classes of
          society, whether on moral, theological or
          political grounds, cannot ordinarily be
          prompted by individual malice or intended to
          produce personal injury.  The politician who
          assails the opposite party, the polemical
          divine who attacks the doctrine or discipline
          or another church or sect, or the moral
          satirist who lashes the vices or the foibles
          of his age and nation, ought not to be held
          responsible in private suits for the bold
          avowal of opinions true or false.  The
          principle upon which the civil remedy is
          allowed, does not apply here; and the great
          interests of society require that it should
          not be made to apply.  It is far better for
          the public welfare that some occasional
          consequential injury to an individual,
          arising from the general censure of his
          profession, his party, or his sect, should go
          without remedy, than that free discussion on
          the great question of politics, or morals, or
          faith, should be checked by the dread of
          embittered and boundless litigation.  When
          such publications so far transcend the limits
          of fair discussion or legitimate moral
          rebuke, as to threaten public injury, they
          are most effectually as well as most properly
          prevented or punished by public prosecution."
          Ryckman v Delavan, 25 WEND 186 (1840), per
          the Chancellor of the New York Court of
          Appeal at 198
          

11.        In  light  of  the  above-quoted  warning  by  Justice
Brandeis, the Press Council submits that it is immaterial whether
or  not  the Government's motives or purpose in enacting  section
7(1)  were  benevolent.  This particular statute  is  a  shocking
encroachment  on the individual's private right to speak  his  or
her  mind  and  an invasion and undermining of the constitutional
securities of everyone in this province.

12.        As  suggested in Boucher and Vogt, free speech is  the
essence  of  democracy.  Free speech is the  balancing  apparatus
which  permits the public, in a free and democratic  society,  to
hear all sides of an issue before they make their choices, or  if
they have made their choices, to change them.  Free speech is not
to be suppressed merely because it provokes fury, offends, shocks
or disturbs.

13.        Each  generation sees fresh attempts by government  to
censor  expression because of some alleged harm to the collective
interest  of  society.  History demonstrates that the authorities
seize upon any excuse to suppress speech which is hateful to  the
government,  to  other  elites  or  to  large  sections  of   the
population.

14.        This  Government,  like others  before  it,  seeks  to
justify  censorship by stirring up public antipathy to  so-called
hate speech.  To have a substantial bite, however, the B.C. Human
Rights  Code condemns huge zones of expression.  This will create
remarkable difficulties.  Start with the case of Salman  Rushdie,
whose  novel  The  Satanic Verses outraged many Muslims  and  was
condemned  as a group libel by the Iranian courts in 1989.   Here
is  what  the leader of the Massachusetts Institute of Technology
Arab student union said about The Satanic Verses:
       
                 Muslims everywhere are outraged _ he went out of his
          way in using highly repugnant and revolting language to insult
          and distort Islam. Personal belief is one thing, but freedom of
          expression stops where vilification and misrepresentation of
          facts start. No civilized society can condone the publication of
          explosively misleading material disguised as "literature."
          
       
         ...
          
       
         We support freedom of speech, but we also
          exhort people to exercise this right
          responsibly. So while we sympathize with the
          advocates of free speech, we deplore the fact
          that, in proving their point, they would
          propagate the same deceptive, twisted and
          outrageous passages which cause pain and
          deep, sincere anguish in so many.
          

15.       Those Canadians who support Rushdie's artistic right to
freedom  of expression cannot reasonably be accused of  intending
or  condoning  harm or hatred or contempt for Muslims.   Thinking
people accept that Rushdie's writing is defensible in a free  and
democratic society because of the paramount importance of freedom
of expression.

16.        The Press Council does not ask this Tribunal to equate
Rushdie to Doug Collins nor would the censorship law in the Human
Rights Code require this Tribunal to make any comparison of their
relative  artistic value.  The Code makes no distinction  between
newspaper  columns  and  great  art.   Unlike  Australian  racial
vilification  laws which exempt genuine artistic expression  from
hate  speech  prohibitions, section 7(1) of B.C.'s  Human  Rights
Code  requires  every  publication  to  be  judged  by  the  same
inflexible measure - is it likely to expose someone to "hatred or
contempt".   If  it  does, there is no defence available  to  the
writer.

17.        Rushdie is not an isolated example.  There  are  many.
Take  the case of Taslima Nasrin, a citizen of Bangladesh,  whose
book Shame depicted the unhappy experiences of a Hindu (minority)
family  living  in Bangladesh.   Shame was banned and  Bangladesh
issued  a  warrant  for her arrest forcing  Nasrin  to  flee  the
country.   The Globe and Mail has said this of Nasrini:   Nasrin,
a  twice-divorced feminist, used her writing as  "a  switchblade,
not  a  scalpel, slashing away at orthodoxy, bigotry  and  cant..
Indeed,  the best polemics are often the most extreme, as writers
from  Jonathan  Swift to Mordecai Richler have shown...No  matter
how rash her words, Taslima Nasrin has a right to speak them."

18.        Bangladesh  informed the United Nations  Human  Rights
Commission  that  its action against Nasrin  had  been  initiated
under article 295(A) of the Bangladesh Penal Code for the purpose
of  protecting  the public from discrimination and  in  order  to
respect the rights and reputations of others.

19.        As  suggested in the Ryckman case, The  Press  Council
takes  the  position  that legal remedies  for  group  defamation
should  be  confined  to the criminal law.  Hate  speech  charges
under the federal Criminal Code must be approved by Crown counsel
who is independent of both the complainant and the police and who
therefore  has  no  personal stake in the hate speech  complaint.
The  prosecution  of criminal charges pits the Crown  against  an
accused  rather  than one group against another  group  which  is
likely  under the type of group defamation law defined in section
7(1)  of the Human Rights Code.  When one group is pitted against
another  group,  the  racial, ethnic and  other  fault  lines  in
society  are likely to widen.  In the long run, group  defamation
claims will do more damage than good to social harmony.  The long
term  prospects  for  social equality  are  damaged  by  enacting
prohibitions that emphasize group differences.

20.       The best response to non-criminal hate speech is within
the  personal  jurisdiction of each  Canadian.   Our  people  are
generally   well-educated,  tolerant  and  polite  and   do   not
sympathize  with  rude or offensive speech.  We are  particularly
uncomfortable and antagonistic to speech that exposes  groups  or
classes  of people to hatred or contempt.  When we hear  or  read
hate speech, we know however that we are entitled to exercise our
free  speech  rights  and  speak out and  censure  the  offensive
speaker.

21.        With the greatest respect to those who hold a contrary
view,  non-criminal "hate speech" linked to Holocaust  denial  or
minimization  can  also  be adequately  dealt  with  by  ordinary
people.   We  do  not require elite assistance  in  the  form  of
censorship  laws  to  shield us from  dangerous  thoughts.   Most
Canadians   understand  as  a  result  of  their  education   the
devastating impact that the Holocaust had for Jewish  people  and
others considered sub-human by the Nazi regime. Miles of film  of
the concentration camps, the personal testimony of survivors, and
the  Holocaust memorials create a lasting impression.  Bookstores
steadily  receive  new  publications analyzing  the  origins  and
assessing  the  dimensions of this tragic page in  history.   Our
knowledge  of  the Holocaust expands almost daily as  governments
release new information previously withheld from the public about
the devastation wrought by World War II.

22.        The Press Council respectfully submits that censorship
of  non-criminal  speech is counter-productive and  intrinsically
reprehensible.  The Press Council rests its argument  not  merely
on  the values built into our Constitution and the Charter, which
are  discussed  in the many case authorities,  but  also  on  the
lessons  to  be  taken  from  the  disciplines  of  history   and
philosophy.

23.        History  teaches us that almost from the time  of  its
invention, written and symbolic expression has been subjected  to
censorship  to  prevent people from being exposed  to  expression
which  is considered undesirable either by the government of  the
day  or by the majority of the governed.  Philosophers, who  were
among  the first writers, have debated the virtues and  evils  of
censorship from the beginning of recorded history.

24.        Fear  has  usually  been the  reason  for  censorship.
Throughout history, deviance from orthodoxy has inspired fear  on
the  part  of those who wield the reins of power.  The political,
social  and  religious  elites  rarely  trusted  the  people  and
sensibly worried that free-thinking peoples would be difficult to
subordinate.

25.        Ironically, censorship often tends to endow  dissident
speakers with powers they would not otherwise possess.  Once  the
government portrays a dissident as a dangerous foe, he or she may
emerge from obscurity and actually gain in power and influence.

26.        Further, censorship is often self-defeating.  Even  if
censorship  is implemented surreptitiously through the  mechanism
of  a  secret police, rumour and the grape vine often  bring  the
public's attention to the dissident message.  Forbidden knowledge
has  an  irresistible attraction.  Witness any recent attempt  to
ban  books.  Accordingly, the forbidden message may be  broadcast
to  a much larger community than it would otherwise have reached.
Driven  underground, dissident expression is not exposed  to  the
rigours of open debate.

27.         Censorship   is   fundamentally   incompatible   with
democracy.   In  an  authoritarian state, the  governed  are  not
trusted  to  think for themselves because the elite  assume  that
only  they know the truth.  In such a society, even the  governed
may  not trust their neighbours' capacity to think for themselves
and  therefore  may willingly support centralized decision-making
by the elite.

28.        Generally,  the degree of censorship  depends  on  the
degree to which the government trusts its citizens and the degree
to  which  the  citizens trust their government  and  themselves.
Less  censorship invariably means more mutual trust.  The  degree
to which the people reject paternalistic government censorship is
a  measure  of  their self-confidence and their courage  to  make
their own decisions.  A community which trusts itself and each of
its  members does not need censorship.  Such a community is truly
democratic.

29.        The  Press  Council  considers  censorship  to  be  an
admission  of  failure by the government.  Censorship  sends  the
message   that  the  education  system  has  failed  to   instill
appropriate  civic values in our youth and failed to  communicate
appropriate  information about the dangers of  racism  and  other
forms  of prejudice and discrimination.  Censorship which is  not
opposed  by the people is an admission by society that  it  lacks
the  courage to deal openly with controversy.  Censorship of  the
type embodied in section 7(1) of the Human Rights Code is not fit
for a free and democratic government in British Columbia.

30.        A  few  of the recent examples of the harm  caused  by
censorship in an authoritarian society are notorious:
     
     (a)  During the period of "total collectivization" from 1932-
          1935,  Stalin declared the kulaks of the Ukraine to  be
          inhuman  and  condemned them as an  outlawed  class  or
          race.   Of  the  10 to 12 million kulaks deported  from
          their farms, a third were dead by 1935; a third were in
          labour  camps; and a third in special settlements.   An
          estimated  6.5  million people  died  as  a  result  of
          dekulakization.   This happened when the  Soviet  media
          were completely controlled by the state;
     
     (b)  During the Second World War, from 1941-1944, the  Nazis
          killed millions of Jews by extermination squads and  by
          shootings  or  gassings in concentration camps  in  the
          occupied territories.  Although some estimates put  the
          number  of  Jews  killed in the  range  of  6  million,
          documents  recently  released in  the  UK  suggest  the
          number  may  be  even higher, and that ordinary  German
          police  played a significant role.  This happened  when
          the  German  media  were completely controlled  by  the
          state.

31.        In  each  of the two examples above, the institutional
power  of  the state was deployed against the victims.   In  each
example,  hatred only achieved its goal of victimization  because
it enjoyed the support of the state and because all opposition to
the state was stifled.

32.        The  Press Council submits that there is  an  enormous
difference   between   hatred  which  is  inspired,   sanctioned,
sponsored and defended by government, on the one hand, and hatred
which  is  propagated by private individuals or  groups,  on  the
other.  If the government is prepared to prevent acts of physical
violence  through the effective enforcement of criminal law,  and
to  allocate adequate resources to education, advocates of hatred
will  remain  a  marginal annoyance in our  free  and  democratic
society.   The  government has no business, however,  setting  up
special  tribunals to define the content of permitted  expression
in the news media, which play the vital role of "public watchdog"
in a free and democratic society.


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