Archive/File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press_Council-Submission.01 Last-Modified: 1998/09/21 - 88 - Document: 243310: 02 CANADIAN JEWISH CONGRESS vs NORTH SHORE FREE PRESS doing business as NORTH SHORE NEWS -AND- DOUG COLLINS SUBMISSIONS OF THE BRITISH COLUMBIA PRESS COUNCIL (INTERVENOR) MAY IT PLEASE THIS TRIBUNAL Introduction 1. The speech restrictions in section 7(1) of the Human Rights Code of British Columbia raise such important issues of constitutional law that the British Columbia Press Council is determined that there be no misunderstanding about their exact nature or about their disturbing implications for the survival of free speech - the most important right of a people in a free and democratic society as it is the foundation of all other rights. 2. The gravity of the threat is obvious from the historical context of this hearing. Since British Columbia joined the Canadian Confederation in 1871, no other newspaper has ever been compelled to appear before a government-appointed tribunal, other than a court, to defend an opinion column against an accusation that it violated content standards prescribed by statute. Nor does it appear that there is precedent for a hearing of this nature in the history of any other part of Canada before or after Confederation. No evidence was tendered to this Tribunal that any other free and democratic country has ever compelled a newspaper to submit to such a non-judicial hearing. 3. The British Columbia Press Council therefore makes no apology for treating this situation as the most serious threat to press freedom in Canada since Alberta's Social Credit government enacted its so-called Accurate News and Information Act in 1937. That Alberta statute, which sought among other things to compel newspapers to print the government's response to critical news stories and to divulge their sources, was struck down by the Supreme Court of Canada in 1938. 4. Contrary to the way others describe the issues, this hearing is not about whether there should be laws against hate speech. This hearing is not about whether Doug Collins' column entitled "Swindler's List" is so distasteful that it and others like it should be banned. This hearing is not about whether Canadians should have the same generous free speech rights as Americans. This hearing is not about whether freedom of speech should be absolute. 5. The true question for judgment in this case is whether the specific censorship law defined by section 7(1) of British Columbia's Human Rights Code is a lawful speech restriction in a free and democratic society. The Government admits that its wording infringes the free speech guarantee in section 2(b) the Canadian Charter of Rights and Freedoms, which is part of the supreme law of Canada. The Press Council says unequivocally that section 7(1) is not a reasonable or a demonstrably justified violation of the free speech rights of its member newspapers and others who work or live within the boundaries of this province. Under this Code, British Columbia is the only Canadian jurisdiction which prohibits "discriminatory" publications in newspaper articles and editorials without stipulating an exemption for the free expression of opinion. 6. The Press Council acknowledges that there is a considerable emotion and controversy surrounding Mr. Collins and his writing but that must not distract this Tribunal from the task of assessing the constitutionality of section 7(1) of the Human Rights Code in accordance with the rigorous principles prescribed by the Supreme Court of Canada in recent judgments and with regard to the wealth of legal, philosophical and historical support for the primacy of free speech rights in a free and democratic society. 7. The Press Council does not presume to criticize this Tribunal in any personal sense, and therefore intends no personal offence by stating its position that this proceeding, from beginning to end, has been an intolerable violation of Charter free speech rights and that the speech restrictions in the Human Rights Code are an affront and insult to every resident of this Province. This hearing is exactly the result which would have occurred, and been in harmony with, the workings of an authoritarian and shackled society. 8. Freedom of expression, the foundation of all our other freedoms, is our most valuable heritage from English law. Now guaranteed by section 2 (b) of the Canadian Charter of Rights and Freedoms, this freedom was first wrested from the political and social elites by brave printer-publishers in the eighteenth century; its foundation was subsequently strengthened by extraordinary people who defied orthodoxy in religion, politics and science; and its vital importance was recently confirmed by the sacrifices of our armed forces who battled fascism in World War II. 9. Free speech is nevertheless a fragile freedom. Like other constitutional rights, it is in most danger when governments proceed, little by little, and often for ostensibly benevolent purposes, to erode its boundaries. In the case of hate speech, the Human Rights Code restrictions on expression represent the culmination of a series of legislative encroachments, partly federal and partly provincial, which have finally reached the point where dissident expression is threatened with extinction. Section 7(1) is an outrageous law that it is but one small step removed from a law which simply says: "If there is a complaint about speech, government shall gag the speaker." 10. Although the authorities are legion, the Press Council invokes the following judicial statements to define the themes which permeate this submission: Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well- meaning, but without understanding. : Olmstead United States of America, 277 U.S. 438, per Mr. Justice Louis Brandeis. There is no modern authority which holds that the mere effect of tending to create discontent or disaffection among His Majesty's subjects or ill-will or hostility between groups of them, but not tending to issue in illegal conduct, constitutes a crime, and this for obvious reasons. Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life. The clash of critical discussion on political, social and religious subjects has too deeply become the stuff of daily experience to suggest that mere ill-will as a product of controversy can strike down the latter with illegality_ Controversial fury is aroused constantly by differences in abstract conceptions: heresy in some fields is again a mortal sin; there can be fanatical Puritanism in ideas as well as in morals; but our compact of free society accepts and absorbs these differences and they are exercised at large within the framework of freedom and order on broader and deeper uniformities as bases of social stability. Similarly in discontent, affection and hostility: as subjective incidents of controversy, they and the ideas which arouse them are part of our living which ultimately serve us in stimulation, in the clarification of thought and, as we believe, in the search for the constitution and the truth of things generally: R. v Boucher,  S.C.R. 265, per Mr. Justice Rand at 288. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self- fulfilment...it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society". European Court of Human Rights, Vogt v Germany (7/1994/454/535), Grand Chamber, at 20 General censure or reproof, satire or invective, directed against large classes of society, whether on moral, theological or political grounds, cannot ordinarily be prompted by individual malice or intended to produce personal injury. The politician who assails the opposite party, the polemical divine who attacks the doctrine or discipline or another church or sect, or the moral satirist who lashes the vices or the foibles of his age and nation, ought not to be held responsible in private suits for the bold avowal of opinions true or false. The principle upon which the civil remedy is allowed, does not apply here; and the great interests of society require that it should not be made to apply. It is far better for the public welfare that some occasional consequential injury to an individual, arising from the general censure of his profession, his party, or his sect, should go without remedy, than that free discussion on the great question of politics, or morals, or faith, should be checked by the dread of embittered and boundless litigation. When such publications so far transcend the limits of fair discussion or legitimate moral rebuke, as to threaten public injury, they are most effectually as well as most properly prevented or punished by public prosecution." Ryckman v Delavan, 25 WEND 186 (1840), per the Chancellor of the New York Court of Appeal at 198 11. In light of the above-quoted warning by Justice Brandeis, the Press Council submits that it is immaterial whether or not the Government's motives or purpose in enacting section 7(1) were benevolent. This particular statute is a shocking encroachment on the individual's private right to speak his or her mind and an invasion and undermining of the constitutional securities of everyone in this province. 12. As suggested in Boucher and Vogt, free speech is the essence of democracy. Free speech is the balancing apparatus which permits the public, in a free and democratic society, to hear all sides of an issue before they make their choices, or if they have made their choices, to change them. Free speech is not to be suppressed merely because it provokes fury, offends, shocks or disturbs. 13. Each generation sees fresh attempts by government to censor expression because of some alleged harm to the collective interest of society. History demonstrates that the authorities seize upon any excuse to suppress speech which is hateful to the government, to other elites or to large sections of the population. 14. This Government, like others before it, seeks to justify censorship by stirring up public antipathy to so-called hate speech. To have a substantial bite, however, the B.C. Human Rights Code condemns huge zones of expression. This will create remarkable difficulties. Start with the case of Salman Rushdie, whose novel The Satanic Verses outraged many Muslims and was condemned as a group libel by the Iranian courts in 1989. Here is what the leader of the Massachusetts Institute of Technology Arab student union said about The Satanic Verses: Muslims everywhere are outraged _ he went out of his way in using highly repugnant and revolting language to insult and distort Islam. Personal belief is one thing, but freedom of expression stops where vilification and misrepresentation of facts start. No civilized society can condone the publication of explosively misleading material disguised as "literature." ... We support freedom of speech, but we also exhort people to exercise this right responsibly. So while we sympathize with the advocates of free speech, we deplore the fact that, in proving their point, they would propagate the same deceptive, twisted and outrageous passages which cause pain and deep, sincere anguish in so many. 15. Those Canadians who support Rushdie's artistic right to freedom of expression cannot reasonably be accused of intending or condoning harm or hatred or contempt for Muslims. Thinking people accept that Rushdie's writing is defensible in a free and democratic society because of the paramount importance of freedom of expression. 16. The Press Council does not ask this Tribunal to equate Rushdie to Doug Collins nor would the censorship law in the Human Rights Code require this Tribunal to make any comparison of their relative artistic value. The Code makes no distinction between newspaper columns and great art. Unlike Australian racial vilification laws which exempt genuine artistic expression from hate speech prohibitions, section 7(1) of B.C.'s Human Rights Code requires every publication to be judged by the same inflexible measure - is it likely to expose someone to "hatred or contempt". If it does, there is no defence available to the writer. 17. Rushdie is not an isolated example. There are many. Take the case of Taslima Nasrin, a citizen of Bangladesh, whose book Shame depicted the unhappy experiences of a Hindu (minority) family living in Bangladesh. Shame was banned and Bangladesh issued a warrant for her arrest forcing Nasrin to flee the country. The Globe and Mail has said this of Nasrini: Nasrin, a twice-divorced feminist, used her writing as "a switchblade, not a scalpel, slashing away at orthodoxy, bigotry and cant.. Indeed, the best polemics are often the most extreme, as writers from Jonathan Swift to Mordecai Richler have shown...No matter how rash her words, Taslima Nasrin has a right to speak them." 18. Bangladesh informed the United Nations Human Rights Commission that its action against Nasrin had been initiated under article 295(A) of the Bangladesh Penal Code for the purpose of protecting the public from discrimination and in order to respect the rights and reputations of others. 19. As suggested in the Ryckman case, The Press Council takes the position that legal remedies for group defamation should be confined to the criminal law. Hate speech charges under the federal Criminal Code must be approved by Crown counsel who is independent of both the complainant and the police and who therefore has no personal stake in the hate speech complaint. The prosecution of criminal charges pits the Crown against an accused rather than one group against another group which is likely under the type of group defamation law defined in section 7(1) of the Human Rights Code. When one group is pitted against another group, the racial, ethnic and other fault lines in society are likely to widen. In the long run, group defamation claims will do more damage than good to social harmony. The long term prospects for social equality are damaged by enacting prohibitions that emphasize group differences. 20. The best response to non-criminal hate speech is within the personal jurisdiction of each Canadian. Our people are generally well-educated, tolerant and polite and do not sympathize with rude or offensive speech. We are particularly uncomfortable and antagonistic to speech that exposes groups or classes of people to hatred or contempt. When we hear or read hate speech, we know however that we are entitled to exercise our free speech rights and speak out and censure the offensive speaker. 21. With the greatest respect to those who hold a contrary view, non-criminal "hate speech" linked to Holocaust denial or minimization can also be adequately dealt with by ordinary people. We do not require elite assistance in the form of censorship laws to shield us from dangerous thoughts. Most Canadians understand as a result of their education the devastating impact that the Holocaust had for Jewish people and others considered sub-human by the Nazi regime. Miles of film of the concentration camps, the personal testimony of survivors, and the Holocaust memorials create a lasting impression. Bookstores steadily receive new publications analyzing the origins and assessing the dimensions of this tragic page in history. Our knowledge of the Holocaust expands almost daily as governments release new information previously withheld from the public about the devastation wrought by World War II. 22. The Press Council respectfully submits that censorship of non-criminal speech is counter-productive and intrinsically reprehensible. The Press Council rests its argument not merely on the values built into our Constitution and the Charter, which are discussed in the many case authorities, but also on the lessons to be taken from the disciplines of history and philosophy. 23. History teaches us that almost from the time of its invention, written and symbolic expression has been subjected to censorship to prevent people from being exposed to expression which is considered undesirable either by the government of the day or by the majority of the governed. Philosophers, who were among the first writers, have debated the virtues and evils of censorship from the beginning of recorded history. 24. Fear has usually been the reason for censorship. Throughout history, deviance from orthodoxy has inspired fear on the part of those who wield the reins of power. The political, social and religious elites rarely trusted the people and sensibly worried that free-thinking peoples would be difficult to subordinate. 25. Ironically, censorship often tends to endow dissident speakers with powers they would not otherwise possess. Once the government portrays a dissident as a dangerous foe, he or she may emerge from obscurity and actually gain in power and influence. 26. Further, censorship is often self-defeating. Even if censorship is implemented surreptitiously through the mechanism of a secret police, rumour and the grape vine often bring the public's attention to the dissident message. Forbidden knowledge has an irresistible attraction. Witness any recent attempt to ban books. Accordingly, the forbidden message may be broadcast to a much larger community than it would otherwise have reached. Driven underground, dissident expression is not exposed to the rigours of open debate. 27. Censorship is fundamentally incompatible with democracy. In an authoritarian state, the governed are not trusted to think for themselves because the elite assume that only they know the truth. In such a society, even the governed may not trust their neighbours' capacity to think for themselves and therefore may willingly support centralized decision-making by the elite. 28. Generally, the degree of censorship depends on the degree to which the government trusts its citizens and the degree to which the citizens trust their government and themselves. Less censorship invariably means more mutual trust. The degree to which the people reject paternalistic government censorship is a measure of their self-confidence and their courage to make their own decisions. A community which trusts itself and each of its members does not need censorship. Such a community is truly democratic. 29. The Press Council considers censorship to be an admission of failure by the government. Censorship sends the message that the education system has failed to instill appropriate civic values in our youth and failed to communicate appropriate information about the dangers of racism and other forms of prejudice and discrimination. Censorship which is not opposed by the people is an admission by society that it lacks the courage to deal openly with controversy. Censorship of the type embodied in section 7(1) of the Human Rights Code is not fit for a free and democratic government in British Columbia. 30. A few of the recent examples of the harm caused by censorship in an authoritarian society are notorious: (a) During the period of "total collectivization" from 1932- 1935, Stalin declared the kulaks of the Ukraine to be inhuman and condemned them as an outlawed class or race. Of the 10 to 12 million kulaks deported from their farms, a third were dead by 1935; a third were in labour camps; and a third in special settlements. An estimated 6.5 million people died as a result of dekulakization. This happened when the Soviet media were completely controlled by the state; (b) During the Second World War, from 1941-1944, the Nazis killed millions of Jews by extermination squads and by shootings or gassings in concentration camps in the occupied territories. Although some estimates put the number of Jews killed in the range of 6 million, documents recently released in the UK suggest the number may be even higher, and that ordinary German police played a significant role. This happened when the German media were completely controlled by the state. 31. In each of the two examples above, the institutional power of the state was deployed against the victims. In each example, hatred only achieved its goal of victimization because it enjoyed the support of the state and because all opposition to the state was stifled. 32. The Press Council submits that there is an enormous difference between hatred which is inspired, sanctioned, sponsored and defended by government, on the one hand, and hatred which is propagated by private individuals or groups, on the other. If the government is prepared to prevent acts of physical violence through the effective enforcement of criminal law, and to allocate adequate resources to education, advocates of hatred will remain a marginal annoyance in our free and democratic society. The government has no business, however, setting up special tribunals to define the content of permitted expression in the news media, which play the vital role of "public watchdog" in a free and democratic society.
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