The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: people/c/collins.doug/bcpc-index


Archive/File: people/c/collins.doug/bcpc-index
Last-Modified: 1998/09/21

                             - 4 -
Document:  244991: 01
                  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)
                                
                                
                                
                                
                              INDEX
                                
                                
                                                             Page

INTRODUCTION                                               1

OVERVIEW:  THE LEGAL ARGUMENT OF THE BRITISH COLUMBIA PRESS
COUNCIL                                                   10

DETAILS OF THE LEGAL ARGUMENT OF THE BRITISH COLUMBIA PRESS
COUNCIL                                                   16

     The Canadian Charter Of Rights And Freedoms          16

     Section 7(1) Of The Human Rights Code Is An Unreasonable And
     Unjustifiable Infringement Of The Free Speech Rights
     Guaranteed
     By The Charter                                       19

     Section (7)1 Prohibits Any Expression Which Is "Likely to
     Expose
     A Person or Group or Class Of Persons To Hatred Or
     Contempt",
     a Classic Definition Of "Defamation"                 22

     Section 7(1) Of The Human Rights Code Creates A Claim For
     "Group Defamation"                                   23

     This New Statutory Cause Of Action Is Not Reasonable 23

     Section 7(1) Of The Human Rights Code Imposes Strict
Liability
     On The Defendant                                     29

     The Well-Established Defences In The Civil Law Or In The
Criminal Law
     Are Missing From The Human Rights Code               37

     A)   Innocent Intent Is Not A Defence                     37
     
     B)   Truth Is Not A Defence                               41
     
     C)   Fair Comment On True Facts Is Not A Defence          44
     
     D)   Publication In The Public Interest And For The Public
        Benefit Is Not A Defence                                  47
     
     E)   Genuine Artistic, Academic, Scientific Or Research
        Purpose Is Not A Defence                                  50
     
     F)   Opinion Expressed In Good Faith On A Religious Subject
        Is Not A Defence                                          52
     
     G)   Expression In Good Faith, Pointing Out For The Purpose Of
        Removal, Matters Producing Or Tending To Produce Feelings Of
        Hatred Is Not A Defence                                   52
     
     H)   Innocent Dissemination Is Not A Defence              53
     
     I)   Reports Of Public Meetings, Court Proceedings, And Other
        Public Proceedings Are Not Privileged                     56

     Procedural Safeguards Are Missing                    88

     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 Action88
     
     K)   The Defendant Has No Right To Appeal, "Judicial Review",
        Has Significant Limitations                               89
     
     L)   The Human Rights Tribunal Does Not Enjoy The Constitutional
        Independence And Tenure Prescribed For Superior Court Judges
        95
     
     M)   The Human Rights Code Does Not Require The Complainant To
        File Formal Pleadings To Submit To Examination For Discovery,
        Or To Produce Documents Prior To Trial                   101
     
     N)   The Human Rights Code Confers A Quasi-Police Jurisdiction On
        The Human Rights Commission To Execute Warrants          103
     
     O)   The Human Rights Code Entitles The Government To Bring A
        Complaint Of Group Defamation Even Where None Has Been Filed
        By Anyone From The Group Allegedly Affected              103
     
     P)   The Human Rights Code Does Not Allow A Defendant To Recover
        Any Portion Of The Legal Costs Involved In Defending A
        Non-Meritorious Complaint                       103
     
     Q)   The Human Rights Code Specifically Provides That The
        Ordinary
        Rules Of Evidence Which Are Designed To Ensure A Fair Hearing,
        Will Not Apply To The Hearing Of Complaint Of Group Defamation
        Do Not Apply To A Human Rights Hearing                   103
     
     The Human Rights Code Also Confers An Unwarranted
     Jurisdiction On
     A Provincial-Government Appointed Tribunal          103
     
     R)   The Tribunal Is Empowered To Enjoin Expression Relating To
        Subjects Within The Jurisdiction Of The Federal Parliament103
     
     S)   There Is No Statutory Ceiling On The Damages Or Costs Which
        May Be Awarded By The Tribunal                           105
     
     T)   The Tribunal Is Empowered To Permanently Prohibit "Similar"
        Expression With No Opportunity For Future Reconsideration106

     Section 7(1) Of The Human Rights Code Is Not Demonstrably
     Justifiable                                         106
     
     Section 7(1) Of The Human Rights Code Is Unnecessary118
     
     U)   The Federal Criminal Code Has Created The Offence Of
        Advocating Genocide In Section 318                       118
     
     V)   The Federal Criminal Code Has Created The Offence Of Public
        Incitement Of Hatred In Section 319(1)                   118
     
     W)   The Federal Criminal Code Has Created The Offence Of Wilful
        Promotion Of Hatred In Section 319(2)                    119
     
     X)   The Federal Criminal Code Provides That A Sentencing Court
        Must Take Into Account Whether An Offence Was Motivated By
        Bias, Prejudice Or Hate In Section 718.2                 120
     
     Y)   The Civil Rights Protection Act, R.S.B.C. 1996, C. 49
        Creates A
        Civil Cause Of Action For Libel Of A Class               120
     
     Z)   State-Sponsored, Church-Sponsored, Officially Sponsored
        Racism
        Is Non-Existent                                          121
     
     AA)  Privately-Sponsored Racism Is Virtually Non-Existent And Is
        Stigmatized By The Community Including Most Journalists And
        Other Writers                                            121
     
     BB)  There Is No Evidence Of A Surge, Or Even The Risk Of A
        Surge, In Racist Incidents                               121
     
     CC)  The Press Council Complaints Procedure Which Is Available To
        The Public Is A Preferred Alternative, In A Free And Democratic
        Society, To Government Censorship Of The News Media      131
     
     DD)  Censorship Is Inherently Undesirable                   134
     
     EE)  The Alleged Harm Of Hate Speech Has Been Greatly Over-Stated
        By The Government, And Is Not A Valid Basis For Restricting
        Speech Which Is Not Criminal                             142

CONCLUSION                                                       153


Home ·  Site Map ·  What's New? ·  Search Nizkor

© The Nizkor Project, 1991-2012

This site is intended for educational purposes to teach about the Holocaust and to combat hatred. Any statements or excerpts found on this site are for educational purposes only.

As part of these educational purposes, Nizkor may include on this website materials, such as excerpts from the writings of racists and antisemites. Far from approving these writings, Nizkor condemns them and provides them so that its readers can learn the nature and extent of hate and antisemitic discourse. Nizkor urges the readers of these pages to condemn racist and hate speech in all of its forms and manifestations.