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Shofar FTP Archive File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press-Council-Submission.13

Archive/File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press_Council-Submission.13
Last-Modified: 1998/09/21

278.      Dickson J. re-emphasized what he considered to be the
importance of the "facts of the particular case" at page 922
where he states:
          ..a contextual approach to s.1 demands an
          appreciation of the extent to which a restriction
          of the activity at issue on the facts of the
          particular case debilitates or compromises the
          principles underlying the broad guarantee of
          freedom of expression"
          _it is important to recognize that expressive
          acitivities advocating upopular or discredited
          positions are not to be accorded reduced
          constitutional protection as a matter of routine:
          content-neutrality is still an influential part of
          free expression doctrine when weighing competing
          interests under s. 1 of the Charter.

279.      Dickson J. noted in Taylor at 922-923 what he called
the "unusually extreme extent to which the expression at stake in
this appeal attacks the s. 2(b) rationale" .  Dickson J. noted at
929-930 that the provisions in the provincial and territorial
human rights statutes "appear to be radically different from s.
13(1)", referring specifically to Nova Scotia's Human Rights Act,
S.N.S. 1969, c. 11, s. 12.

280.      Dickson J. nowhere in his judgment disparages the
provisions in the provincial human rights statutes which would
exempt the free expression of opinion upon any subject in speech
or in writing.  In fact, Dickson J. states at page 930 that they
"are best seen as indicating to the human rights tribunals the
necessity of balancing the objective of eradicating
discrimination with the need to protect free expression."

281.      Dickson J. also recognized that intent is important.
He states at page 931 that "it cannot be denied that to ignore
intent in determining whether a dsicriminatory practice has taken
place according to s. 13(1) increases the degree of restriction
upon the constitutionally protected freedom of expression.  This
result flows from the realization that an individual open to
condemnation and censure because his or her words may have an
unintended effect will be more likely to exercise caution via

282.      The particular requirement of "repeated" telephonic
hate messages was held by Dickson to comport a requirement for
something in the way of a series of messages, which he concluded
directed the attention of section 13(1) to "public, larger-scale
schemes for the dissemination of hate propaganda."

283.      There were no news media intervenors in the Taylor case
and the dangers to free expression contained in opinion columns
were therefore not at issue and certainly not weighed by the
majority of the Court.  Nor were there any news media intervenors
in the companion cases of Keegstra or Andrews.  None of those
cases directly involved the news media.

284.      McLachlin J, in a strong dissent in Taylor, noted at p
947 that section 13(1) of the Canadian Act does not without prior
warning attach a penalty to expression; that it is only after the
Tribunal has declared that past conduct has violated section 13,
and after the order has been entered, that an individual faces a
penalty for violating the section should he or she continue the
impugned conduct.  She notes at page 963 that in argument the
supporters of the legislation point out that violation of s.
13(1) "does not in itself lead to any penalty.  It is merely the
starting point in a process arguably calculated to segregate
justifiable expression from that which is not suitable for
transmission by a public utility and which truly promotes
detrimental hatred and contempt, and to thereafter effect,
hopefully through voluntary means, the cessation of the offending
conduct."  At page 952, she describes the treatment of hate
propaganda under the First Amendment to the U.S. Constitution:
          _In the United States, where freedom of expression
          is viewed as perhaps the most fundamental liberty,
          the validity of legislation restricting the
          promotion of hate and discrimination is seen as
          conflicting with free expression and to survive
          must meet onerous tests, such as a connection
          between the legislation and a clear and present
          danger to society. _The Canadian Charter suggests
          an analysis closer to the American model than the
          international, in so far as it confers a broad and
          virtually unlimited right, which, in cases of
          conflict, must be weighed against countervailing
          values under s. 1 to determine if the state has
          established that the limitation of the right
          imposed by the anti-hate law is reasonable and
          justifiable in a free and democratic society.

285.      McLachlin J (La Forest and Sopinka JJ concurring)
nevertheless would have found s. 13(1) of the Canadian Human
Rights Act unconstitutional:
          I have concluded that s. 13(1) of the Act cannot
          be upheld by reference to s. 1, as it cannot
          survive the proportionality inquiry.  While the
          suppression of hate messages is an important and
          desirable objective, in my view s. 13(1) does not
          achieve that objective in a manner consistent with
          the proportionality test in Oakes.  The broad and
          vague ambit of s. 13(1), unconditioned by any
          limitations of significance, has as its effect the
          unnecessary prohibition of a great deal of
          defensible speech and belies any suggestion of a
          serious effort to accommodate the important right
          of freedom of expression.  Notwithstanding the
          sensitive and appropriate enforcement procedure
          established by the Act, the dimension of the
          overbreadth of the legislation is such that the
          tests established by this Court for the
          application of s. 1 cannot be met.

286.      McLachlin J concluded at 964 that "Rights and freedoms
guaranteed by the Charter cannot be left to the administrative
discretion of those employed by or retained by the state."  She
notes at 966:
          There may be good reasons to defer to legislative
          judgment on the appropriate balance between
          furthering equality and safeguarding free
          expression, particularly in the context of a human
          rights statute.  The problem here, however, is
          that no serious attempt to strike such a balance
          appears to have been made.  The Act does not, as
          other human rights Codes do, admonish the tribunal
          to have regard to the speaker's freedom of
          expression in applying the provision.  Nor does it
          contain even one of the various defences or
          exceptions included in s. 319(3) of the Criminal
          Code, and thought to be so significant in striking
          the balance by the Cohen Committee: Report of the
          Special Committee on Hate Propaganda in Canada
          (1966), at pp. 65-66.  Rather, it simply applies
          to all expression "likely to expose a person or
          person to hatred or contempt."

287.      The Press Council submits that Taylor is only authority
for the proposition that s. 13(1) of the federal statute is
justified under section 1 of the Charter.  The facts in the case
of this complaint against a newspaper and its columnist are
dramatically different.  Taylor does not lay down any principle
which requires this Tribunal to rule that section 7(1) is

288.      Reference is made here to the discussion of the
principle of stare decisis which may be defined as the
"[d]octrine that, when court has once laid down a principle of
law as applicable to a certain set of facts, it will adhere to
that principle, and apply it to all future cases, where the facts
are substantially the same.  In William R. Ehrcke, Stare Decisis
(1995) The Advocate 847, the principle is discussed in the
context of the Supreme Court of Canada at page 854:
          It is sometimes said that even the obiter dicta of
          the Supreme Court of Canada is legally binding.
          That is an oversimplification.  The authority
          usually cited for the proposition is Sellars v The
          Queen, [1980] 1 S.C.R. 527.  The issue in Sellars
          was whether a trial judge must warn a jury of the
          risk of basing a conviction on the uncorroborated
          evidence of an accessory after the fact.  The
          Court had expressed the opinion that such a
          warning is necessary in a previous case.  Paradis
          v The Queen, [1978] 1 S.C.R. 264, although the
          comment on the point in Paradis was arguably
          obiter dicta.  The Court in Sellars treated the
          expression of opinion in Paradis as determinative,
          observing at p. 529:
            As it does from time to time, the Court has
            thus ruled on the point, although it was not
            absolutely necessary to do so in order to
            dispose of the appeal.
          The Court then adopted with approval at p. 530,
          the following passage from Ottawa v Nepean
          Township et al., [1943] 3 D.L.R. 802 (Ont.C.A.) at
          p. 804:
            What was there said may be obiter, but it
            was the considered opinion of the Supreme
            Court of Canada, and we should respect it
            and follow it even if we are not strictly
            bound by it.
          However, the Supreme Court has from time to time
          taken a more restricted view of what its own cases
          stand for. Thus, in Dore v Attorney General of
          Canada, [1975] 1 S.C.R. 756, Fauteux C.J.C. at pp.
          767-768 adopted the observations of the Earl of
          Halsbury, L.c. in Quinn v Leatham, [1901] A.C. 495
          at p. 506
            Now before discussing the case of Allen v
            Flood, [1898] A.C. 1, and what was decided
            therein, there are two observations of a
            general character which I wish to make, and
            one is to repeat what I have very often said
            before, that every judgment must be read as
            applicable to the particular facts proved,
            or assumed to be proved, since the
            generality of the expressions which may be
            found there are not intended to be
            expositions of the whole law, but governed
            and qualified by the particular facts of the
            case in which such expressions are to be
            found.  The other is that a case is only an
            authority for what it actually decides.  I
            entirely deny that it can be quoted for a
            proposition that may seem to follow
            logically from it.
          Of course, Dore was decided prior to Sellers.
          Perhaps more to the point, then, is the decision
          of the Court in Rothman v The Queen, [981] 1
          S.C.R. 640.  At issue there was whether the
          Supreme Court of Canada had in a previous case of
          Alward and Mooney v The Queen, [1978] 1 S.C.R.
          adopted a new test for the admissibility of
          confessions in criminal trials.  In Alward,
          Spence, J., speaking for a majority of the Court
          had written at pp. 562-563:
            Limerick J.A concluded after discussing the
            evidence as to the statements in detail:
            "The true test, therefore, is did the
            evidence adduced by the Crown establish that
            nothing, said or done by any person in
            authority, could have induced the accused to
            make a statement which was or might be
            untrue because thereof.  The Crown met that
            test." This court agreed with that
          The Court in Rothman rejected the Argument that
          the above-quoted passage represented an acceptance
          of a new "reliability" test for confessions.
          Speaking for a majority of the Court, Martland, J.
          noted that on the Alward appeal, the respondent
          had not even been called upon to address the issue
          of the admissibility of the confession."  He then
          wrote at p. 674:
            In light of this background, I do not agree
            that it can be said that this Court in this
            casual and indirect manner had adopted any
            new test for the admissibility of a
          More recently, in DeSousa v The Queen, [1992] 2
          S.C.R. 944 the Court similarly rejected an
          argument that certain dicta in Smithers v The
          Queen, [1978] 1 S.C.R. 506 constituted an
          acceptance of an expanded meaning of "unlawful
          act" for the purposes of manslaughter.
          While the considered opinion of the Supreme Court
          of Canada expressed in a given case may be binding
          even though obiter, it must never be assumed that
          the Court would make important pronouncements on
          the law in a casual and indirect manner."

289.      Many of the arguments made in this submission were not
advanced in Taylor.  Moreover, Taylor was decided before a number
of the important recent judgments which have refined the Oakes
test and expanded the boundaries of freedom of expression in
other contexts, including to name a few, Dagenais and RJR-
Macdonald.  From the list of authorities cited in Taylor, it does
not appear that the Court was referred to any decisions of the
European Court of Human Rights, although the Court mentions the
European Convention and the international treaties on civil and
political rights and the elimination of racial discrimination.

290.      Taylor is silent on one argument made here by the Press
Council:  The main penalty of any cenorship law is the censorship
itself - i.e. the gag order.  As the European Court of Human
Rights suggests in the Jersild case, the amount of a fine or
other punishment is secondary to the primary consequence of
gagging speech.  Censorship is the worst punishment of any
censorship clause.

Section 7(1) Of The Human Rights Code Is Unnecessary:

(U)  The Federal Criminal Code Has Created the Offence of
     Advocating Genocide in Section 318:

291.      In 1970, the federal Parliament enacted the following
provision of the Criminal Code:
          318.(1) Every one who advocates or promotes
          genocide is guilty of an indictable offence and
          liable to imprisonment for a term not exceeding
          five years.
          (2)  In this section, "genocide" means any of the following acts
          committed with intent to destroy in whole or in part any
          identifiable group, namely, (a) killing members of the group; of
          (b) deliberately inflicting on the group conditions of life
          calculated to bring about its physical destruction.
          (3)  No proceeding for an offence under this section shall be
          instituted without the consent of the Attorney General.
(4)  In this section, "identifiable group" means any section of
the public distinguished by colour, race, religion or ethnic

(V)  The Federal Criminal Code Has Created The Offence Of Public
     Incitement Of Hatred In Section 319(1);

292.      In 1970, the federal Parliament enacted the following
provision of the Criminal Code:
          "Public Incitement of Hatred"
          319.(1)  Every one who, by communicating
          statements in any public place, incites
          hatred against any identifiable group where
          such incitement is likely to lead to a breach
          of the peace 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
           (7) In this section
          "identifiable group" has the same meaning as
          section 38
          namely "any section of the public
          distinguished by colour, race, religion, or
          ethnic origin."

(W)  The Federal Criminal Code Has Created The Offence Of Wilful
     Promotion Of Hatred In Section 319(2)

293.      In 1970, the federal Parliament enacted the following
provision in the Criminal Code:
          The NDP government claimed that its censorship law was
          enacted to deal with hate propaganda.
          "Wilful promotion of hatred"
          (2) 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
           (7) In this section "identifiable group" has
          the same meaning as section 318 namely "any
          section of the public distinguished by
          colour, race, religion, or ethnic origin."

(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

294.      In 1996, Parliament enacted section 718.2 of the
Criminal Code which came into force September 3, 1996:
            718.2     A court that imposes a sentence shall also take into
            consideration the following principles: (a) a sentence should be
            increased or reduced to account for any relevant aggravating or
            mitigating circumstances relating to the offence or the offender,
            and, without limiting the generality of the foregoing, (I)
            evidence that the offence was motivated by bias, prejudice or
            hate based on race, national or ethnic origin, language, colour,
            religion, sex, age, mental or physical disability, sexual
            orientation or any other similar factor_shall be deemed to be
            aggravating circumstances.

(Y)  The Civil Rights Protection Act, R.S.B.C. 1996, C. 49,
     Creates A Civil Cause Of Action For Libel Of A Class

295.      Despite the amendment to the Human Rights Code made in
1993, the Legislature has not repealed the Civil Rights
Protection Act, R.S.B.C. 1996,  c.  49, which prohibits [section
1] "any conduct or communication by a person that has as its
purpose interference with the civil rights of a person or class
of persons by promoting  (a) hatred or contempt of a person or
class of persons, or   (b) the superiority or inferiority of a
person or class of persons in comparison with another or others,
on the basis of colour, race, religion, ethnic origin or place of
origin. "  Section 2 of the Act creates a civil cause of action
for damages in the Supreme Court of British Columbia which is
actionable without proof of damage by any person against whom the
prohibited act was directed, or ,  (b) if the prohibited act was
directed against a class of persons, by any member of that class.
Section 3 entitles the Attorney General to intervene in the
action.   Section 4 authorizes the court to award damages or
exemplary damages.  Where the action is brought by a member of a
class, the court may order payment of the damages to any person,
organization or society that, in the court's opinion, represents
the interests of the class of persons.  The Court may also grant
an injunction.

(Z)  State-Sponsored, Church-Sponsored, Officially Sponsored
     Racism Is Non-Existent

(AA) Privately-Sponsored Racism Is Virtually Non-Existent And Is
     Stigmatized By The Community Including Most Journalists and
     Other Writers

(BB) There Is No Evidence Of A Surge, Or Even The Risk Of A
     Surge, In Racist Incidents

296.      The Press Council respectfully submits that the
evidence of a relationship between news media publication of
alleged racist speech and the degree of racism in British
Columbia is purely speculative.  There is certainly no evidence
of a recent increase in racism.

297.      To the contrary, in his direct evidence (May 20, 1997),
Morton Weinfeld stated that the measures of the impact of racism
are "slippery".  It would be valuable to get a more rigorous set
of indicators (p. 96).    When asked by Ms. Mrozinski what the
impact of the reinforcement of stock  discriminatory themes might
have on actual discrimination, Weinfeld replied: "Well, here
obviously we're at the realm of conjecture since we have no
studies that establish this.  But I think that the logic is quite
powerful_" (pp. 52-53).

298.      In essence, Morton Weinfeld conceded that his evidence
about the impact of racist speech is in the realm of hypothesis.

299.      In the course of his cross examination (May 21, 1997),
Weinfeld agreed that counter-expression can be one answer to
other expression (p. 63-65).  In comparing the Jewish experience
in Canada and the United States, Weinfeld testified that  income
is roughly comparable in both countries; intermarriage is
actually greater in the United States,  and residential
segregation is actually less pronounced in the United States)
(pp. 99-103).  This evidence, the Press Council respectfully
submits, is compelling proof that there is no basis for an
argument that enhancing anti-hate speech laws in British Columbia
will enhance the position of the Jewish community in this
province.  The Jewish community seems to be at least as well off
under more generous free speech laws in the U.S.A.

300.      With respect to the impact of the news media, Weinfeld
conceded that although he had searched for any research regarding
the effect of the news media's use of derogatory ethnic labels,
no such research appeared to exist.

301.      Tim Renshaw, the editor of the North Shores News,
testified that he believes that the North Shore comprises a
diverse and tolerant community.  The only alleged "hate crime"
incident that he can recall is the cross-burning, which turns out
to have been an inter-family/community situation.  Ex 46 is an
article reporting to this effect (pp. 55-59).  On cross-
examination by Ms. Westmacott,  Renshaw emphasized that as the
editor of a community newspaper with his ear to the ground, he is
well placed to monitor hate activities in the North Shore.  To
his knowledge, hate and hate crime are not a problem on the North
Shore (pp. 157-159).   This evidence was uncontradicted.

302.      Exhibit 57, the affidavit of Gerald Albert Porter,
appends the documents obtained as a result of  requests under the
Freedom of Information and Protection of Privacy Act.  None of
the disclosed records recite any meaningful  facts which
logically support an inference that: (i) acts of discrimination,
systematic distribution of hate propaganda and racial violence
were on the rise in British Columbia, or (ii) that section 7(1)
of the Human Rights Code and related provisions would provide a
remedy to any instances of alleged racism described in the
documents.  In fact, unless there are facts concealed in the
withheld documents, the evidence overwhelmingly suggests that the
government knew, or ought to have known, that the 1993 amendments
to the Human Rights Code were unnecessary.

303.      The Hon. U. Dosanjh [now Attorney General] stated
[Hansard, at 7061]:
          "This amendment the hon. minister introduced
          explicitly and expressly reserves, guarantees
          and protects the right of private
          communications. To take that protection to
          its logical-perhaps absurd-conclusion means
          that members of a so-called hate group,
          members of a group that promotes supremacy of
          one group over the other, members of a racist
          group, can share among themselves, and mail
          their own newsletter to each other.  that is
          my reading of that particular expressed
          protection for private communications..."

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