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,  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  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),  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),  2 S.C.R. 412; Berg v University of British Columbia,  2 S.C.R. 353 at 371.
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