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Shofar FTP Archive File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press-Council-Submission.12

Archive/File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press_Council-Submission.12
Last-Modified: 1998/09/21

244.      In a civil defamation action brought in the courts,
pleadings in the form of a statement of claim and a statement of
defence identify the event or transaction with which the
litigation is concerned, set out the legal consequences which the
party contends will flow from the event or transaction and
specify the relief or remedy that the party seeks.

245.      Pleadings are particularly important in a defamation
action in part because of the complexities involved in alleging
the defamatory meaning of expression, and in part because of the
defences available to a defamation claim.  If initial pleadings
are deficient, a party may demand further and better particulars.

246.      One of the objects of proper pleadings is to ensure
that each party knows the case it has to meet at trial.

247.      These safeguards do not exist in the context of a
"group defamation" claim made pursuant to section 7(1) of the
Human Rights Code.

248.      In a civil defamation action brought in the Supreme
Court of British Columbia, the Rules of Court grant litigants
rights to compel the disclosure of the existence of documents
which are (or were) in the possession of another party and
concerning inspection and production of those documents: Rule 26.
This right is extremely important to trial preparation and is
also frequently critical to preparation for other pre-trial
procedures including identification of potential witnesses and
evidence held by non-parties.  The Rules of Court also enable a
party to apply to Court for an order in advance of the hearing
requiring a non-party to produce documents in his possession:
Rule 26(11).

249.      The Rules of Court also entitle a party to conduct an
oral examination under oath of a party adverse in interest in
advance of the hearing, at which the person being examined must
answer any question asked relating to a matter in question in the
action, unless he is entitled to claim privilege: Rule 27.  Among
other things, it enables a party to obtain admissions from an
opposing party which will dispense with the need for formal proof
at the hearing and to know the case of the opposing party well in
advance of the hearing so that proper preparation may take place.
Other forms of discovery may take place by interrogatories (Rule
29) the pre-trial examination of non-party witnesses (Rule 28).
Trial preparation may also be facilitated by depositions of key
witnesses taken under oath before trial (Rule 38).

250.      None of these procedures are prescribed by the Human
Rights Code or any regulations relating to the Code.

(N)  The Human Rights Code, Unlike The Court Rules Which Are
     Applicable To A Civil Defamation Action, Confers A Quasi-
     Police Jurisdiction On The Human Rights Commission To
     Execute Warrants Against A Defendant Even Before A Complaint
     Is Accepted For Hearing.

(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.

(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.

(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.

251.      Section 35(3) of the Human Rights Code provides that
the Tribunal "may receive and accept on oath, by affidavit or
otherwise, evidence and information that the member or panel
considers necessary and appropriate, whether or not the evidence
or information would be admissible in a court of law."

252.      The Press Council respectfully submits that this
provision is unjustifiable in the context of "group defamation"

The Human Rights Code Also Confers An Unwarranted Jurisdiction On
A Provincial-Government Appointed Tribunal:

(R)  The Tribunal Is Empowered To Enjoin Expression Relating To
     Subjects Within The Jurisdiction Of The Federal Parliament;

253.      On its face, section 7(1) of the Human Rights Code is
not confined to expression relating to subjects within provincial

254.      The Constitution Act, 1867, assigns certain subjects to
the exclusive jurisdiction of the federal Parliament, including:
1 the public debt and property;  2. the regulation of trade and
commerce; 2a. unemployment insurance; 3. the raising of money by
any mode or system of taxation; 4. the borrowing of money on the
public credit; 5. postal service; 6. the census and statistics;
7. militia, military and naval service, and defence; 8. the
fixing of and providing for the salaries and allowances of civil
and other officers of the government of Canada; 9. beacons,
buoys, lighthouses, and Sable Island; 10. navigation and
shipping; 11. quarantine and the establishment and maintenance of
marine hospitals; 12. sea coast and inland fisheries; 13. ferries
between a province and any British or foreign country or between
two provinces; 14. currency and coinage; 15. banking,
incorporation of banks, and the issue of paper money; 16. savings
banks; 17. weights and measures; 18. bills of exchange and
promissory notes; 19. Interest; 20. legal tender; 21. bankruptcy
and insolvency; 22. patents of invention and discovery; 23.
Copyrights; 24. Indians, and lands reserved for the Indians; 25.
naturalization and aliens; 26. marriage and divorce; 27. the
criminal law, except the constitution of courts of criminal
jurisdiction, but including the procedure in criminal matters;
28. the establishment, maintenance, and management of
penitentiaries.  These headings cover subjects of considerable
public controversy.

255.      As discussed in the authorities cited above, the
Legislature of British Columbia does not have the constitutional
jurisdiction to stifle the free expression of opinion or other
statements relative to these subjects of federal jurisdiction.

256.      The affidavit of Gerald Albert Porter (Exhibit 57)
appends certain documents he obtained from the Ministry of
Multiculturalism (tab E), including a memorandum which appears to
indicate that Ministry was made aware of the constitutional
problem [at page 159]:
          The case of Nova Scotia Board of Censors v
          McNeil,[ [1978] 2 S.C.R. 622] _ brings up an
          interesting issue.  In that case, the Supreme
          Court of Canada indicated that political
          expression was excluded from provincial
          jurisdiction.  In R. v Keegstra (1990), 3.S.C.R.
          697, Dickson C.J. recognizes that hate propaganda
          is political expression.  Keegstra, Canada (Human
          Rights Comm.) v Taylor (1990), [1991] 13 C.H.R.R.
          D/435, R v .Zundel, [1992] 2 S.C.R. 731, and R. v
          Butler, [1992] 1 S.C.R. 452, all involved federal
          legislation so the issue of whether a province can
          regulate "political speech" has not been before
          the Supreme Court of Canada.  Tarnopolsky, in his
          book Discrimination and the Law (Toronto: Richard
          De Boo Ltd. 1982), concludes that hate literature
          falls within federal jurisdiction
            `unless there is evidence to show that the
            effects of such messages would be to enhance
            discrimination against the target groups in
            ways or by means prohibited by provincial
            human rights legislation (at 338).

(S)  There Is No Statutory Ceiling On The Damages Or Costs Which
     May Be Awarded By The Tribunal;

257.      Section 37(2) provides that if the Tribunal determines
that the complaint is justified, the Tribunal may, if the person
discriminated against is a party to the complaint, or is an
identifiable member of a group or class on behalf of which a
complaint is filed, order the person that contravened the Code to
"compensate the person discriminated against for all, or a part
the member or panel determines, of any wages or salary lost, or
expenses incurred by, the contravention" and "pay to the person
discriminated against an amount that the member or panel
considers appropriate to compensate that person for injury to
dignity, feelings and self respect or to any of them."

258.      There is no statutory cap on the award that could be
made under these provisions.

259.      The Canadian Human Rights Act specifically provides in
section 54(1) that where a Human Rights Tribunal finds that a
complaint related to hate messages (section 13) is substantiated,
the Tribunal may only make an order referred to in section
53(2)(a); namely "that the person cease the discriminatory
practice and, in order to prevent the same or a similar practice
from occurring in the future" take certain other measures ordered
by the Commission.  Accordingly, the Canadian Human Rights Act
specifically prvents the federal Tribunal from making any
monetary awards to anyone for hate messages.

260.      British Columbia, Alberta and Saskatchewan are the only
provinces which have a "group defamation" provision prohibiting
"hatred and contempt" publications in their Human Rights
statutes.  Alberta's Human Rights, Citizenship and
Multiculturalism Act allows a human rights tribunal to
"compensate the person dealt with contrary to this Act for all or
any part of any wages or income lost or expenses incurred by
reason of the contravention of this Act" but unlike British
Columbia, does not empower the human rights tribunal to award
damages "for injury to dignity, feelings and self respect or to
any of them."  Saskatchewan's Human Rights Code  also does not
empower a human rights board of inquiry to award damages "for
injury to dignity, feelings and self respect or to any of them";
it empowers the board to require a payment "to compensate any
person injured by that contravention for any or all of the wages
and other benefits of which the person so injured was deprived
and any expenses incurred by the person so injured as a result of
the contravention" and "any compensation that the board of
inquiry may consider proper, to any person injured by that
contravention, for any or all additional costs of obtaining
alternative goods, services, facilities or accommodation and any
expenses incurred by the person so injured as a result of the

261.      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. 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. 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, and
exposes the news media to an award of general damages for "injury
to dignity, feelings and self respect".

(T)  The Tribunal Is Empowered To Permanently Prohibit "Similar"
     Expression With No Opportunity For Future Reconsideration.

Section 7(1) Of The Human Rights Code Is Not Demonstrably

262.      In a number of lengthy judgments in the 1980's, the
Supreme Court of Canada established a method of analysis to be
used in determining whether a Charter right invalidates
government legislation:  R v Oakes, [1986] 1 S.C.R. 103, followed
and applied in C.B.C. v New Brunswick (Attorney General) (1996),
3 S.C.R. 480, Attis v. New Brunswick District No. 15 Board of
Education [1996] 1 S.C.R. 826;  R v Andrews [1990] 3 S.C.R. 451;
Irwin Toy Ltd. v Quebec [1989] 1 S.C.R. 927;  R v Zundel, [1992]
2 S.C.R. 731; RJR-MacDonald Inc. v Canada [1995] 3 S.C.R. 199 and

263.      That Oakes method of analysis is as follows:
          Step 1:  Determine whether the particular form or
          act of expression is within the ambit of the
          interest protected by section 2(b); i.e. has a
          section 2(b) right or freedom been infringed?
          Step 2:  If the section 2(b) right or freedom has
          been infringed, determine whether the infringement
          is justified under section 1 of the Charter.
          In this regard, the infringement may be justified
          if two requirements are satisfied:
     Pressing and Substantial Concern
     (a)  Firstly, the legislative objectives which the
          limitation is designed to promote must be of
          sufficient importance to warrant overriding the
          constitutional rights and freedoms in section
          2(b). They must bear on a "pressing and
          substantial" concern.
     (b)  Secondly, the means chosen to attain those
          objectives must be proportional or appropriate
          to the ends. The proportionality requirement
          normally has three aspects:
          (i)       the limiting measures must be
               carefully designed, or rationally
               connected, to the objective;
          (ii)      they must impair the section 2(b)
               rights and freedoms as little as possible;
          (iii)     their effects must not so severely
               trench upon section 2(b) that the
               legislative objective, albeit important,
               is nevertheless outweighed by the
               abridgment of the Charter.

264.      At step 1 of the analysis, the onus is on the party
alleging infringement of section 2(b).  In this case, the
Attorney General of British Columbia has admitted that section
7(1) of the Human Rights Code infringes section 2(b) of the
Charter.  This onus is therefore satisfied by the Press Council.

265.      At Step 2, the party seeking to uphold the limit on
free speech must demonstrate on a balance of probabilities that
there is a rationale connection between the legislation and the
objective.  Further, the party seeking to uphold the limits must
demonstrate that the means chosen impair the freedom  or right in
question as little as possible.  What will be "as little as
possible" varies depending on the government's objective and on
the means available to achieve it.  In this case, this burden
rests on the Attorney General of British Columbia.

266.      In Dagenais v Canadian Broadcasting Corporation, [1994]
3 S.C.R. 854, the Supreme Court of Canada refined the burden of
proof that must be satisfied by a party seeking to justify an
infringement of the free speech guarantee contained in section
2(b) of the Charter.

267.      The Press Council respectfully submits that as a result
of Dagenais, section 7(1) must satisfy an even tougher
"proportionality" test than the Supreme Court of Canada
previously applied to infringements of free speech rights.  Under
the original "Oakes test", speech restrictions could be upheld if
there was a proportionality between the objectives of a statute
(viewed in the abstract) and the negative effects on free speech.
Under the revised test prescribed in Dagenais, a person seeking
to restrict speech now must also prove there is a proportionality
between the beneficial effects and the negative effects.

268.      In Dagenais, setting aside an Ontario injunction which
prohibited the CBC television from broadcasting The Boys of St-
Vincent mini-series, the Court held (6-3) that free speech rights
are not subordinate to an accused's right to a fair trial which
is guaranteed by section 11(b)and (d) of the Charter.  The CBC
mini-series is a fictional account of sexual and physical abuse
of children at a Catholic school in Newfoundland.  The Ontario
Court of Appeal, justifying the extraordinary injunction against
the CBC, had ruled that the ban was necessary to avoid the risk
of denying fair trials to Dagenais and three other accused.  The
accused were charged with abuse of boys at Catholic institutions
in Ontario.  The Ontario Court of Appeal characterized the
extraordinary injunction as an "inconvenience" to the CBC because
it would terminate after the criminal trials.  Applying a common
law principle several hundred years old, the Court of Appeal held
that fair trial rights automatically over-ride free speech

269.      The Supreme Court of Canada, taking a completely
different tack from the Ontario courts, recognized freedom of
expression as a paramount value, not to be infringed unless
absolutely necessary.  The judgement provides directions to
criminal judges about steps they must take before issuing
publication bans, the content of permissible bans, and the
procedure to be followed by media who wish to challenge
publication bans.  Chief Justice lamer (Sopinka, Cory, McLachlin,
Iacobucci and Major J.J. concurring on the following points)
          i)   before ordering a ban, the judge should, where possible,
               review the publication sought to be prohibited;
          ii)  the party seeking a publication ban bears the burden of
               proof to justify the ban and must show: that the proposed ban is
               necessary in that its objective can not be achieved by reasonably
               available and effective alternative measures such as adjourning
               the trial, changing the trial venue, sequestering jurors,
               allowing challenges for cause and voir dires during jury
               selection, or strong judicial direction to the jury; and that
               there is a proportionality between the positive and negative
               effects of the publication ban;
          iii)      all other options must be considered and the judge must
               find that there is no reasonable and effective alternative
iv)  all possible ways to limit the specific publication ban must
be considered and the judge must limit the ban as much as
          v)   the importance of the objectives of the particular ban and
               its probable effects must be weighed against the importance of
               the particular expression that will be limited to ensure that the
               positive and negative effects of the ban are proportionate.

270.      Chief Justice Lamer's majority judgment contains no
extraordinary prose or soaring rhetoric but it is a watershed
judgment for the Supreme Court of Canada.  It establishes such a
stringent test for prior restraint orders that they should rarely
be held constitutional in the future.  The new test resembles the
"clear and present danger" test under the First Amendment to the
U.S. Constitution that must be met to justify prior restraint
orders against the media in that country.

271.      Some who seek to justify section 7(1) of the British
Columbia Human Rights Code suggest that it can be justified in a
Canadian-style free and democratic society because we differ from
the Americans whose courts give their First Amendment free speech
rights generous protection.  The reality is that Canadian law
already imposes restrictions on hate speech which go far beyond
what would be tolerated under the First Amendment.  Of the
Canadian statutory hate speech restrictions recited above, only
section 318 "advocating genocide" and 319(1) "public incitement
of hatred" might survive First Amendment scrutiny and even that
is questionable because they are not content neutral.  In R.A.V.
v City of St. Paul, 112 S. Ct. 2538 (1992), a five member
majority of the United States Supreme Court held that even if a
statute managed to prohibit only "fighting words", it was
nevertheless invalid because it punished some "fighting words"
(those which arouse anger "on the basis of race, color, creed,
religion or gender") and not others, thus violating the rule
against content-based regulation.  Even if all fighting words are
punishable, a legislature cannot choose on the basis of content
to outlaw some fighting words and permit others. R.A.V. seems to
foreclose in the United States any statute against hate speech
which prescribes anything other than "fighting words".  Any
statute that goes beyond face-to-face vilification would be
struck down under the First Amendment.

272.      The Attorney General of British Columbia (and the
supporting intervenors) place reliance on the decision of the
Supreme Court of Canada in Canada (Human Rights Commission) v
Taylor, [1990] 3 S.C.R. 892, where a narrow majority (4-3) of the
Supreme Court of Canada upheld the constitutionality of a speech
restriction contained in the Canadian Human Rights Act which
reads as follows:
          13.(1)  It is a discriminatory practice for a
          person or a group of person acting in concert
          to communicate telephonically or to cause to
          be so communicated, repeatedly, in whole or
          in part by means of the facilities of a
          telecommunication undertaking within the
          legislative authority of Parliament, any
          matter that is likely to expose a person or
          persons to hatred or contempt by reason of
          the fact that that person or those persons
          are identifiable on the basis of a prohibited
          ground of discrimination."

273.      The phrase "prohibited grounds of discrimination" in
section 13.(1) is defined in section 2 of the Canadian Human
Rights Act  to include (though is not restricted to) "race,
national or ethnic origin, colour and religion."

274.      The Press Council respectfully submits that Taylor is
distinguishable from the instant case and does not support the
proposition that section 7(1) of the Human Rights Code is a
justifiable infringement of section 2(b) of the Charter.  There
are very significant differences between the Canadian Human
Rights Act  (the "Canadian Code") and the British Columbia Human
Rights Code (the "BC Code"):
     1)   The Canadian Act applies only to repeated, telephonic
          communications; the BC Code applies to all forms of expression;
     2)   The Canadian Act does not apply to the news media; the BC
          Code applies to the news media;
     3)   The only remedy available under the Canadian Act is an
          injunction; the remedies under the BC Code extend beyond an
          injunction to include monetary damage awards, including damages
          for both pecuniary and non-pecuniary loss of injury to dignity,
          feelings and self respect;
     4)   An injunction pronounced by the Tribunal under the Canadian
          Act can be registered as a judgment of the Federal Court.  If
          breached, contempt procedures might follow; the injunction and
          damages award by the Tribunal under the BC Code can be registered
          as a judgment of the BC Supreme Court.  Without any further
          misconduct by the defendant, execution proceedings may be taken
          against the business and personal assets of the defendant for an
          unpaid award;
     5)   the Canadian Act applies uniformly across Canada; residents
          of the other provinces and territories are not subject to the
          speech restrictions in the BC Code;
     6)   the Canadian Act provides for an appeal to a three member
          human rights panel if a complaint was heard by a one-member
          tribunal; the BC Code does not provide any right of appeal.

275.      Dickson, C.J., who wrote for the majority in Taylor,
concluded that hate speech is protected by section 2(b) of the
Charter [page 914, b-e].  He explicitly rejected the argument
that hate speech "is the very antithesis of the values supporting
the freedom of expression guarantee and therefore is not
deserving of protection under section 2(b) [page 914, j; page
915, a].

276.      In his analysis under section 1 of the Charter which
lead him to the conclusion that section 13(1) of the Canadian Act
was justified, Dickson C.J.C. stated at 916-917:  "analysis
requires an approach sensitive to the context of a given case, it
being necessary to explore the nature and scope of
constitutionally entrenched human rights in light of the facts at
hand _the nature of the association between the expression at
stake in the appeal and the rationales underlying s. 2(b) will be
instrumental in assessing whether a particular legislative effort
to eradicate hate propaganda is a reasonable limit justified in a
free and democratic society."

277.      The expression at stake in Taylor was not an opinion
column in a public newspaper but a telephone "hot-line"
containing explicitly virulent material.  In that context, the
listener heard only the isolated hate message and had no
opportunity to respond by letter to the editor or otherwise.  The
listener was exposed only to that message.  In the case of a
newspaper, opinion columns form only part of the total
communication and may be contradicted in the same issue by other
writers or by subsequent letters to the editor.  In short, they
are open to challenge and are frequently impeached by readers.
Readers expect opinion columns to be controversial and to
stimulate contrary expression.

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