Archive/File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press_Council-Submission.04 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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