Archive/File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press_Council-Submission.05 Last-Modified: 1998/09/21 83. With the exception of Manitoba, every other human rights statute in the provinces and territories which contains a prohibition against "discriminatory publications" also contains an exemption for the expression of opinion: 1) Alberta, Human Rights, Citizenship and Multiculturalism Act, section 2(2) states: "Nothing in this section shall be deemed to interfere with the free expression of opinion on any subject."; 2) The Saskatchewan Human Rights Code states in section 14(2): "Nothing in subsection (1) restricts the right to freedom of speech under the law upon any subject." 3) Quebec, Charter of Human Rights and Freedoms, article 3 states: Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association."; 4) Newfoundland, Human Rights Code, section 14(2) states "Nothing in this section interferes with the free expression of opinions upon a subject by speech or in writing."; 5) New Brunswick, Human Rights Code, section 6(2) states: "Nothing in this section interferes with, restricts, or prohibits the free expression of opinions upon any subject by speech of in writing."; 6) Nova Scotia, Human Rights Act, section 7(2) states: "Nothing in this Section is deemed to interfere with the free expression of opinion upon any subject in speech or in writing." 7) Ontario, Human Rights Code, states in section 13(2): "Subsection (1) shall not interfere with freedom of expression of opinion. 8) Prince Edward Island, Human Rights Act, section 12(2) states: "Nothing in this section shall be deemed to interfere with the free expression of opinion upon any subject in speech or in writing."; 9) Northwest Territories, Fair Practices Act, states in section 5(2): "Nothing in subsection (1) interferes with the free expression of opinion on any subject." 84. The Manitoba Human Rights Code, although it lacks explicit protection for freedom of expression of opinion, does not apply to newspapers and does not contain a "group defamation" provision of the type found in the British Columbia Human Rights Code. It does not prohibits messages that "explose a person or group or class of persons to hatred or contempt". Manitoba prohibits "any sign, symbol, notice or statement that: (a) discriminates or indicates intention to discriminate in respect of an activity or undertaking to which this Code applies; or (b) incites, advocates or counsels discrimination in respect of an activity or undertaking to which this Code applies; unless bone fide and reasonable cause exists for the discrimination. 85. The Canadian Human Rights Act does not apply to newspapers. The prohibition against speech in that statute applies only to repeated telephonic communications. 86. Accordingly, British Columbia is the only Canadian jurisdiction with a Human Rights Code which lacks an exemption for the expression of opinion but nevertheless prohibits "discriminatory" publications in newspapers. 87. The Human Rights Code of the Yukon Territory, although it does not contain a "discriminatory publications" prohibition like the other provinces and territories, states in section 4: "Every individual and every group shall, in accordance with the law, enjoy the right to freedom of expression, including freedom of the press and other media of communication." 88. British Columbia, Alberta and Saskatchewan are the only provinces which have a "group defamation" provision in their Human Rights statute: 1) Alberta, section 2(1) states: "No person shall publish, issue or display or cause to be published, issued or displayed before the public any statement, publication, notice, sign, symbol, emblem, or other representation that _(b) is likely to expose a person or a class of person to hatred or contempt _because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income or family status of that person or class of persons."; [the underlined words differ from section 7(1) of the British Columbia Human Rights Code.] 2) Saskatchewan, section 14(1), states: "No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device or in any printed matter or publication or by means of any other medium that he owns, controls, distributes or sells, any representation, including, without restricting the generality of the foregoing, any notice, sign, symbol, emblem, article, statement or other representation:_(b) which exposes, or tends to expose, to hatred, ridicules, belittles, or otherwise affronts the dignity of any person, any class of persons or a group of person:_because of his or their race, creed, religion, colour, sex, sexual orientation, family status, marital status, disability, age, nationality, ancestry, place of origin or receipt of public assistance." 89. Of those free provinces, only British Columbia's statute [as previously noted] does not exempt the expression of opinion. The Well-Established Defences In The Civil Law Or In The Criminal Law Are Missing From The Human Rights Code: (A) Innocent Intent Is Not A Defence 90. Unlike the "wilful promotion of hatred" offence in section 319(2) of the federal Criminal Code, it is no defence under the Human Rights Code that a newspaper did not intend to "expose a person ...to hatred or contempt." nor would it be a defence for the newspaper to prove that it actually intended the precise opposite; for example, that its publication was merely a parody or satire which was misconstrued by the readers. 91. Section 2 of the Human Rights Code makes it clear that a guilty mind is not a pre-requisite to liability: Discrimination and intent 2. Discrimination in contravention of this Code does not require an intention to contravene this Code. 92. Racial vilification offences have been part of the Canadian Criminal Code since 1970. The two main racial vilification offences are "public incitement of hatred" and "wilful promotion of hatred" under section 319 of the Criminal Code. Each of those offences requires mens rea [Black's Law Dictionary: A guilty mind; a guilty or wrongful purpose; a criminal intent]. See R v Keegstra (1990), 61 C.C.C. (3d) 1,  2 W.W.R. 1,  3 S.C.R. 697. 93. The Criminal Code also prohibits advocating genocide in section 318. This offence also requires proof of mens rea. 94. It is respectfully submitted that the failure to provide for a defence of innocent intent, or innocent dissemination, makes section 7(1) of the Human Rights Code invalid. The Code currently authorizes a complaint even against those who merely sell or display (even without endorsing) the politically unpopular expression of others. Innocent residents of British Columbia are a potential target of this censorship law and can be "gagged" by an injunction, or ordered to pay damages, for disseminating ideas which do not meet the statutory standard for content. Even works of art including paintings, photographs and musical lyrics, whatever their purpose, are subject to banning under the Human Rights Code. 95. Amy Adler, in What's Left?: Hate Speech, Pornography, and the Problem for Artistic Expression, argues that in calling for censorship, leftists endanger a great deal of activist speech, particularly in the form of artwork, that in fact seeks to undermine the very hate speech the censorship advocates target. Because much postmodern art appropriates the language and images of hate speech in order to deconstruct or otherwise subvert them, leftist attempts at censorship carry a grave danger of silencing leftist activists. Adler, an assistant professor of law at New York University School of Law, states: Recently, in a startling reversal of tradition, the American political left has let out a cry for the censorship of speech. With a symmetry so perfect it approaches artifice - and therefore is ironically suited to the problem of artistic expression - this new leftist movement mirrors the censorship of the right, leaving a large sector of speech doubly threatened from both opposing camps. [page 1500] _the left has increasingly attacked art, denouncing it as racist or sexist even when the artists responsible for the work claim that they intended to criticize racism and sexism. How could this have happened? How could leftist censors have generated theories that now threaten activist speech arising in their own communities? The answer stems from a dangerous combination of two factors: (1) the surprising nature of the new political art, and (2) the načve interpretive theories that underlie the new censorship proposals. Leftist censors have overlooked a dramatic shift in contemporary political and artistic speech that directly defies their theories - the move toward a subversive use of hate speech and pornography. Thus, while leftist censors propose banning certain harmful words and images, a remarkable thing is occurring: activists and artists are increasingly using these same words and images as part of their political discourse. [page 1503] As legal theorists debate one another about banning the words and symbols that constitute hate speech, they have failed to notice that many of these words and symbols have taken an unforeseen twist. Hate images that anti-hate speech theorists target serve as instruments of activism in the communities these theorists seek to empower through censorship. We need look no further for an example of this activist technique of repositioning hate speech than the central symbol of the AIDS activists movement: the pink triangle. Now a symbol of empowerment for a marginalized group, the pink triangle derives not from a proud moment in gay history but from a tragic one, the Holocaust, when homosexuals were slaughtered and the pink triangle was the equivalent for homosexuals of the yellow star for Jews. This symbol of hatred and victimization, now turned right-side up, has become the sign of awareness, liberation, and life and death stakes in quite another context. [page 1520] In a similar reversal, the word "queer", an epithet connoting not just hatred but often impending violence - "queer bashings" -has given birth to a militant gay activist group, "Queer Nation". This group wears the epithet of hatred as a badge of pride. Indeed, the word "queer"has become the word of choice for may gays and lesbians_ Similar reversals are occurring with other hate speech words. Even the hateful word "nigger" has taken on an activist use, functioning, for example, as part of the title of the rap band N.W.A. ("Niggaz with Attitude"). Although the term "nigger" has long been an element of black vernacular, the word has recently emerged into the mainstream, primarily through rap music, and has come to be viewed by some as a term of empowerment when used by blacks. [page 1521]. Consider from this perspective one of the most important targets of the leftist censors: the symbols generated by and associated with the Ku Klux Klan. While the sight alone of a white Klan robe can conjure up tremendous psychic pain and fear for blacks, these same images provide fodder for anti-Klan speakers; the work they produce is sometimes even difficult to distinguish from pro- Klan propaganda. Andres Serrano, the Hispanic/balck artist who achieved notoriety when Senator Jesse Helms singled out a Serrano photograph entitled Piss Christ in a show partially sponsored by the National Endowment for the Arts ("NEA"), went on to make enormous, even regal, even glorious color photographs of Klansmen in their white robes. One might interpret these photographs as conveying a powerful anti-Klan message. But how do we know that these presumably activist images are intended as such, or actually function in an activist role? And if indeed the work does play an activist anti-Klan role, is there a rule of censorship that would exempt Serrano's photographs while banning other symbols of the Klan that perpetuate rather than protest its racist agenda?[1522-1523] Any theory that purports to regulate speech must make certain assumptions about how speech works. The theory must grapple with language's complexities. it must recognize that a large and beautiful portrait of a Klansman may fight racism, a violent picture of a rape may oppose sexual violence, and a call to kill "queers" may be a call to save lives. So far though, leftist censors have devised only a rudimentary theory of interpretation. Ignoring the indeterminacy of language, they imagine a world where all victims know a victimizing statement from a non- victimizing statement, where victimizing speech never has its opposite effect, and where words have only one meaning. If they acknowledge at all that speech may have multiple meanings, the leftists censors assume those meanings are easily discerned by investigating the identities or mindsets of speaker and listener. Denying the complexity of language, these theorists go on to draft definitions of speech that ignore the reality of the very speech most precious to their causes. Because of the indeterminate nature of language itself - the way in which, for example, well- intentioned activist speech and oppressive hate speech can have similar effects - there is no possibility of devising a system of leftist political censorship that could protect the subversive, activist use of speech and pornography. Intention and effects are ultimately disjointed. "Misinterpretation" is inevitable. Speech functions in multiple and contradictory ways. Leftists must therefore make a choice: they can adopt a system of censorship, or they can offer full protection to activism. They can't do both. [Page 1571-1572] 96. Like the hate propaganda offences in the Canadian Criminal Code, the South African censorship laws other than its Publications Act [which is similar to B.C.'s Human Rights Code] create hate speech offences which require guilty intent: 1) Section 29(1) of the Black Administration Act, 1927, made it an offence for any person to "utter any words or to do any act or thing whatever (which would include the publication of any matter ) with intent to promote any feeling of hostility between Blacks and Europeans;" 2) Section 1 of the Second General Law Amendment Act, 1974, made it an offence for any person to utter "words or perform_ any other act with intent to cause, encourage or foment feelings of hostility between different population groups of the Republic"; 3) Section 2(2) of the Terrorism Act lists the "causing or encouraging or furthering of feelings of hostility between the White and other inhabitants of the Republic" as one of the `results' of a number of different actions. If any of these is committed and its likely result is one of those listed, a very serious offence is committed. The onus is upon the accused to prove beyond a reasonable doubt that he did not commit the act with that purpose." 97. Some critics, including the Government, argue that the federal Criminal Code, which requires proof of intent beyond a reasonable doubt, makes enforcement of the hate propaganda offence provisions difficult. 98. The Government had a number of options, however, for dealing with intent in section 7(1) of the Human Rights Code, without employing the criminal law standards of proof beyond a reasonable doubt: 1) the Human Rights Code might have explicitly required that the complainant prove intent to the civil standard, namely on a balance of probabilities; 2) the Human Rights Code might have shifted the onus to prove an innocent intent or a lack of guilty intent to the person who is the subject of a complaint. 99. Even giving the Government the benefit of the doubt and assuming that it genuinely intended to suppress only extreme hate speech with the Human Rights Code, the absence of an "intent" requirement is grossly inconsistent with its purpose. If the expression of a speaker or publisher had an innocent intent, but accidentally runs afoul of section 7(1) of the Human Rights Code, the possibility of deterrence never arises unless everyone reduces their speech to bland pablum or simply decides to remain silent. Under The Human Rights Code, There Are No Defences Once The Tribunal Finds That The Expression Complained Of Is Defamatory (B) Truth Is Not A Defence 100. In Irwin Toy Limited v Quebec (A.G.),  1 S.C.R. 927, Dickson C.J. (Lamer and Wilson JJ concurring) discussed (at 976) the nature of the principles and values "underlying the vigilant protection of free expression in a society such as ours" and stated: "(1) seeking and attaining the truth is an inherently good activity". 101. Truth is a defence to a charge of wilful promotion of hatred of identifiable groups under section 319 (2) of the Criminal Code, which provides: "Every one who, by communicating statements, other than in a private conversation, wilfully promotes hatred against any identifiable group is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction." Section 319(3) provides: "(3) No person shall be convicted of an offence under subsection (2) (a) if he establishes that the statements communicated were true." Note that the onus of proof is reversed and falls upon the accused. 102. Similarly, the Criminal Code offence of "defamatory libel" of individuals is subject to a defence of truth. Section 298. (1) defines "defamatory libel" to mean "matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published." [emphasis added]. "Justification" in this context may include truth. In any event, section 311 provides: "No person shall be deemed to publish a defamatory libel where he proves that the publication of the defamatory matter in the manner in which it was published was for the public benefit at the time when it was published and that the matter itself was true." 103. In R. v Keegstra,  3 S.C.R. 697, the majority [4- 3] upheld the reverse onus clause with respect to the defence of truth defined in section 319(3) of the Criminal Code, which required the accused to prove the truth of his or her group defamation on a balance of probabilities. ["The reverse onus in the truth defence operates so as to make it more difficult to avoid conviction where the wilful promotion of hatred has been proven beyond a reasonable doubt. Second, the section also represents a minimal impairment of the presumption of innocence. By requiring the accused to prove that his statements are true on a balance of probabilities, Parliament made a concession to the importance of truth in freedom of expression values without excessively compromising the effectiveness of s. 319(2)]. 104. Similarly, in a civil defamation lawsuit in the common law provinces, truth is an absolute defence. The defence does not need to prove every minor detail of the defamatory allegations. It is sufficient to prove the truth of the "sting" or "bite' or "gist" of defamation. Moreover, even malicious publication of the truth is not actionable. In fact, the defence of truth will succeed even if the defendant did not know that the defamatory statement was true when it was published and believed it to be false at that time. Carter-Ruck on Libel and Slander states at 92-93: It has always been a complete defence to a civil action for defamation to prove that the words or matter complained of are true, for `the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not, to possess' [Per Littledale J. in McPherson v Daniels (1829) 10 B & C 263). (It is to be noticed that although the judge speaks here of character, the law of defamation is concerned not with character but with reputation, a distinction which causes some difficulty with regard to the kind of evidence which can be given in an attempt to mitigate damages. A defence of this kind is called a plea of justification (in Scotland a plea of veritas) and the plea is usually in the following form: `the words complained of are true in substance and in fact.'_ In order to succeed upon a plea of justification the onus lies upon the defendant to prove that the whole of the defamatory matter complained of, that is to say the words themselves and any reasonable inference to be drawn from them, are substantially true. `When a plea of justification is pleaded, it involves the justification of every injurious imputation which a jury may think is to be found in the alleged libel'. [Digby v Financial news Ltd.  1 KB 502, CA per Collins MR at 507] In every action for defamation the court starts with the presumption that the words complained of are false until the contrary is established. Any statement which alters the character of the main imputation or adds to its sting must be justified. The precise charge must be proved. On the other hand for the defence to be successful it is not necessary that every `t' should be crossed and every `i' dotted; it is sufficient if the substance of the libellous statement be justifed. `As much must be justified as meets the sting of the charge, and if anything be contained in the charge which does not add to its sting, that need not be justified.' [Belt v Lawes (1882) 51 LJQB 359]. 105. The Human Rights Code does not provide a defence of truth to a complaint of "group defamation" made pursuant to section 7(1). 106. The Press Council respectfully submits that a group defamation law which does not recognize a defence of truth cannot be regarded a reasonable or as demonstrably justified in a free and democratic society. At a bare minimum, the Human Rights Code ought to have incorporated a defence of truth subject to a reverse onus clause, which would place a burden of proof on the defendant to prove the truth of his or her defamatory statement on a balance of probabilities. 107. In this regard, the British Columbia Human Rights Code censorship clause mirrors the failure of apartheid South Africa to provide a truth exemption from the censorship provisions of its Publications Control Act. Louise Silver, in A Guide to Political Censorship in South Africa (April 1984), quoted from a South African ruling on a complaint about an anti-Jewish pamphlet published by a Muslim group which criticized the Israeli invasion of Lebanon (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. [underlining added].
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