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

191.      The International Covenant on Civil and Political
Rights (16 Dec 66) provides, inter alia:
          
          Article 14
           
           1. All persons shall be equal before the
           courts and tribunals. In the determination
           of any criminal charge against him, or of
           his rights and obligations in a suit at
           law, everyone shall be entitled to a fair
           and public hearing by a competent,
           independent and impartial tribunal
           established by law....
          
          Article 19
           
           1. Everyone shall have the right to hold
           opinions without interference.
           
           2. Everyone shall have the right to freedom
           of expression; this right shall include
           freedom to seek, receive and impart
           information and ideas of all kinds,
           regardless of frontiers, either orally, in
           writing or in print, in the form of art, or
           through any other media of his choice.
           
           3. The exercise of the rights provided for
           in paragraph 2 of this article carries with
           it special duties and responsibilities. It
           may therefore be subject to certain
           restrictions, but these shall only be such
           as are provided by law and are necessary:
           
           (a) For respect of the rights or
           reputations of others;
           
           (b) For the protection of national security
           or of public order (ordre public), or of
           public health or morals.
          
          Article 26
          
          All persons are equal before the law and are
          entitled without any discrimination to the
          equal protection of the law. In this respect,
          the law shall prohibit any discrimination and
          guarantee to all persons equal and effective
          protection against discrimination on any
          ground such as race, colour, sex, language,
          religion, political or other opinion,
          national or social origin, property, birth or
          other status.
          
          Article 27
          
          In those States in which ethnic, religious or
          linguistic minorities exist persons belonging
          to such minorities shall not be denied the
          right, in community with the other members of
          their group, to enjoy their own culture, to
          profess and practise their own religion, or
          to use their own language."

192.      The American Convention On Human Rights "Pact Of San
Jose, Costa Rica" (22 Nov 69) provides, inter alia:
          
          Article 13. FREEDOM OF THOUGHT AND
          EXPRESSION.
           
           1. Everyone has the right to freedom of
           thought and expression. This right includes
           freedom to seek, receive, and impart
           information and ideas of all kinds,
           regardless of frontiers, either orally, in
           writing, in print, in the form of art, or
           through any other medium of one's choice.
           
           2. The exercise of the right provided for
           in the foregoing paragraph shall not be
           subject to prior censorship but shall be
           subject to subsequent imposition of
           liability, which shall be expressly
           established by law to the extent necessary
           to ensure:
          
          a.   Respect for the rights or reputations of
          others; or
          
          b.   The protection of national security,
          public order, or public health or morals.
           
           3. The right of expression may not be
           restricted by indirect methods or means,
           such as the abuse of government or private
           controls over newsprint, radio broadcasting
           frequencies, or equipment used in the
           dissemination of information, or by any
           other means tending to impede the
           communication and circulation of ideas and
           opinions.
           
           4. Notwithstanding the provisions of
           paragraph 2 above, public entertainment may
           be subject by law to prior censorship for
           the sole purpose of regulating access to
           them for the moral protection of childhood
           and adolescence."

193.      The importance of freedom of expression is also the
described in a legion of cases decided by Canadian courts before
and after the Canadian Charter of Rights and Freedoms came into
force in May, 1982.

194.      The leading pre-Charter decisions of the Supreme Court
of Canada on freedom of expression are the Alberta Press Bill
Case, Boucher v The King and Switzman v Elbling.

195.      In the Alberta Press Bill Case, [Reference re Alberta
Legislation, [1938] S.C.R. 100 ], pursuant to the Supreme Court
Act the federal Government referred to the Supreme Court of
Canada questions concerning the constitutional validity of
certain legislation enacted by the Social Credit Government of
Alberta, including An Act to Ensure the Publication of Accurate
News and Information.   The premable of the "Press bill" recites
that it is "expedient and in the public interest that the
newspapers published in the Province should furnish to the people
of the Province statements made by the authority of the
Government of the Province as to the true and exact objects of
the policy of the Government and as to the hindrances to or
difficulties in achieving such objects to the end that the people
may be informed with respect thereto."  Per Cannon J. at pages
142-144:
          
          Section 3 provides that any proprietor, editor,
          publisher or manager of any newspaper published in
          the province shall, when required to do so by the
          Chariman of the Board constituted by section 3 of
          the Alberta Social Credit Act, publish in that
          newspaper any statement furnished by the Chairman
          which has for its object the correction or
          amplification of any statement relating to any
          policy or activity of the government of the
          province published by that newspaper within the
          next preceding thirty-onee days.
          
          And section 4 provides that the proprietor, etc.,
          of any newspaper upon being required by the
          Chairman in writing shall within twenty-four hours
          after the delivery of the requirement
            
            make a return in writing setting out every
            source from which any information emanated,
            as to any statement contained in any issue
            of the newspaper published within sixty days
            of the making of the requirement and the
            names, addresses and occupations of all
            persons by whom such information was
            furnished to the newspaper and the name and
            address of the writer of any editorial,
            article or news item contained in any such
            issue of the newspaper.
          
          Section 5 denies any action for libel on account
          of the publication of any statement pursuant to
          the Act.
          
          Section 6 enacts that in the event of a
          proprietor, etc., of any newspaper being guilty of
          any contravention of any of the provisions of the
          Act, the Lieutenant-Governor-in-Council, upon a
          recommendation of the Chairman, may by order
          prohibit,
               
               (a)  the publication of such newspaper either for a definite time
               or until further order;
               
               (b)  the publication in any newspaper of anything written by any
               person specified in the order;
(c)  the publication of any information emanating from any person
or source specified in the order.
          
          Section 7 provides for penalties for
          contraventions or defaults in complying with any
          requirement of the Act.
          
          The policy referred to in the preamble of the
          Press bill regarding which the people of the
          province are to be informed from the government
          standpoint, is undoubtedly the Social Credit
          policy of the government.  The administration of
          the bill is in the hands of the Chairman of the
          Social Credit Board who is given complete and
          discretionary power by the bill.  "Social Credit,"
          according to sec. 2(b) of ch. 3, 1937, second
          session, of The Alberta Social Credit Amendment
          Act is
            
            the power resulting from the belief inherent
            within society that its individual members
            in association can gain the objectives they
            desire;
          
          and the objectives in which the people of Alberta
          must have a firm and unshaken belief are the
          monetization of credit and the creation of a
          provincial medium of exchange instead of money to
          be used for the purposes of distributing to
          Albertans loans without interest, per capita
          dividends and discount rates to purchases goods
          from retailers_The pith and substance of the bill
          is to regulate the press of Alberta from the
          viewpoint of public policy by preventing the
          public from being misled or deceived as to any
          policy or activity of the Social Credit Government
          and by reducing any opposition to silence or bring
          upon it ridicule and public contempt_.I agree with
          the submission of the Attorney-General for Canada
          that this bill deals with the regulation of the
          press of Alberta, not from the viewpoint of
          private wrongs or civil injuries resulting from
          any allged infringement or privation of civil
          rights which belong to individuals, considered as
          individuals, but from the viewpoint of public
          wrongs or crimes, i.e. involving a violation of
          the public rights and duties to the whole
          community, considered as a community, in its
          social aggregate capacity.

196.      In addition to Cannon J, the panel of the Supreme Court
of Canada that heard this case consisted of Duff, C.J. and
Crocket, Davis, Kerwin, and Hudson JJ.  With respect to the
Accurate News and Information Act, the panel unanimously
determined that it was ultra vires the Legislature of Alberta but
for varying reasons.

197.      Mr. Justice Cannon emphasized the fundamental nature of
freedom of speech and found the Accurate News and Information Act
to be an attempt "to revive the old theory of the crime of
seditious libel" for actions which "after due consideration by
the Dominion Parliament, have been declared innocuous and which,
therefore, every citizen of Canada can do lawfully and without
hindrance or fear of punishment".  Cannon J continued in the
following terms [at 145-146]:
          
          "Freedom of discussion is essential to enlighten
          public opinion in a democratic State; it cannot be
          curtailed without affecting the right of the
          people to be informed through sources independent
          of the government concerning matters of public
          interest.  There must be an untrammeled
          publication of the news and political opinions of
          the political parties contending for
          ascendancy...Democracy cannot be maintained
          without its foundation: free public opinion and
          free discussion throughout the nation of all
          matters affecting the State within the limits set
          by the criminal code and the common law. Every
          inhabitant in Alberta is also a citizen of the
          Dominion.  The province may deal with his property
          and civil rights of a local and private nature
          within the province; but the province cannot
          interfere with his status as a Canadian citizen
          and his fundamental rights to express freely his
          untrammeled opinion about government policies and
          discuss matters of public concern.  The mandatory
          and prohibitory provisions of the Press Bill are
          ..ultra vires of the provincial legislature.  they
          interfere with the free working of the political
          organization of the Dominion...the federal
          parliament is the sole authority to curtail, if
          deemed expedient and in the public interest, the
          freedom of the press in discussing public affairs
          and the equal rights in that respect of all
          citizens throughout the dominion."

198.      Chief Justice Duff (Davis J concurring), was also of
the opinion that the Press bill was an invasion of the liberty of
the press and of the right of public discussion, which a
provincial legislature did not have the authority to limit.  Per
Duff C.J. at pages 133-135:
          
          [The British North America Act] contemplates a
          parliament working under the influence of public
          opinion and public discussion.  There can be no
          controversy that such institutions derive their
          efficacy from the free public discussion of
          affairs, from criticism and answer and counter-
          criticism, from attack upon policy and
          administration and defence and counter-attack;
          from the freest and fullest analysis and
          examination from every point of view of political
          proposals.  This is signally true in respect of
          the discharge by Ministers of the Crown of their
          responsibility to parliament, by members of
          Parliament of their duty to electors, and by the
          electors themselves of their responsibilities in
          the election of their representatives.
          
          The right of public discussion is, of course,
          subject to legal restrictions; those based upon
          considerations of decency and public order, and
          others conceived for the protection of various
          private and public interests with which, for
          example, the laws of defamation and sedition are
          concerned.  In a word, freedom of discussion
          means, to quote the words of Lord Wright in James
          v Commonwealth [1936] AC 578 at 627], `freedom
          governed by law.'
          
          Even within its legal limits, it is liable to
          abuse and grave abuse, and such abuse is
          constantly exemplified before our eyes; but it is
          axiomatic that the practice of this right of free
          public discussion of public affairs,
          notwithstanding its incidental mischiefs, is the
          breath of life for parliamentary institutions.
          
          ..Any attempt to abrogate this right of public
          debate or to suppress the traditional forms of the
          exercise of the right (in public meeting and
          through the press) would, in our opinion, be
          incompetent to the legislatures of the provinces,
          or to the legislature of any one of the provinces,
          as repugnant to the provisions of The British
          North America Act, by which the Parliament of
          Canada is established as the legislative organ of
          the people of Canada under the Crown, and Dominion
          legislation enacted pursuant to the legislative
          authority given by those provisions_
          
          Some degree of regulation of newspapers everybody
          would concede to the provinces.  Indeed, there is
          a very wide field in which the provinces
          undoubtedly are invested with legislative
          authority over newspapers; but the limit, in our
          opinion, is reached when the legislation effects
          such a curtailment of the exercise of the right of
          public discussion as substantially to interfere
          with the working of the parliamentary institutions
          of Canada_

199.      Crocket, Kerwin and Hudson JJ. did not specifically
discuss free speech concerns but rather struck down the Accurate
News and Information Act on the ground it formed part of the
general scheme of social credit legislation which was ultra vires
as a whole.

200.      In the 1950 decision of the Supreme Court of Canada in
Boucher v The King [1951], S.C.R. 265, the majority (5-4) set
aside the conviction of the accused, a Jehovah's Witness, for
seditious libel arising from the distribution in Quebec of a
pamphlet published by the Watch Tower Bible and Truth Society.
Discussing the nature of "seditious intent", an essential
ingredient of the Criminal Code offence of seditious libel,
Kerwin J. adopted the following definition:
          
          A seditious intention is an intention to bring
          into hatred or contempt, or to excite disaffection
          against the person of, His Majesty_or the
          government and constitution of the United Kingdom,
          as by law established, or either House of
          Parliament, or the administration of justice, or
          to excite His Majesty's subjects to attempt
          otherwise than by lawful means, the alteration of
          any matter in Church or State by law established,
          or to incite any person to commit any crime in
          disturbance of the peace, or to raise discontent
          or disaffection amongst His Majesty's subjects, or
          to promote feelings of ill-will and hostility
          between different classes of such subjects.
          
          An intention to show that His Majesty has been misled
          or mistaken in his measures, or to point out errors or
          defects in the government or constitution as by law
          established, with a view to their reformation, or to
          excite His Majesty's subjects to attempt by lawful
          means the alteration of any matter in Church or State
          by law established, or to point out, in order to their
          removal, matters which are producing, or have tendency
          to produce, feelings of hatred and ill-will between
          classes of His Majesty's subjects, is not a seditious
          intention.

201.      Kerwin J. held that the trial judge had erred by
failing to put the issue of good faith accurately to the jury:
          
          The use of strong words is not by itself
          sufficient nor is the likelihood that readers of
          the pamphlet _would be annoyed or even angered,
          but the question is, was the language used
          calculated to promote public disorder or physical
          force or violence.  In coming to a conclusion on
          this point, a jury is entitled to consider the
          state of society or, as it is put by Chief Justice
          Wilde in his charge to the jury in The Queen v
          Fussell [(1848) 6 St. Tr. (N.S.) 723 at 762]
          
          You cannot, as it seems to me, form a correct
          judgment of how far the evidence tends to
          establish the crime imputed to the defendant,
          without bringing into that box with you a
          knowledge of the present state of society,
          because the conduct of every individual in
          regard to the effect which that conduct is
          calculated to produce, must depend upon the
          state of the society in which he lives.  This
          may be innocent in one state of society,
          because it may not tend to disturb the peace or
          to interfere with the right of the community,
          which at another time, and in a different state
          of society, in consequence of its different
          tendency, may be open to just censure.

202.      Accordingly, Kerwin J. held the conviction should be
quashed and directed that there be a new trial.

203.      In separate reasons allowing the appeal but directing a
verdict of acquittal, Rand J.traced the history of seditious
libel and free speech in the following terms [at 285:
          
          Up to the end of the 18th century [seditious
          libel] was, in essence, a contempt in words of
          political authority or the actions of authority.
          If we conceive of the governors of society as
          superior beings, exercising a divine mandate, by
          whom laws, institutions and administrations are
          given to men to be obeyed, who are, in short,
          beyond criticism, reflection or censure upon them
          or what they do implies either an equality with
          them or an accountability by them, both equally
          offensive.  In that lay sedition by words and the
          libel was its written form.
          
          But constitutional conceptions of a different
          order making rapid progress in the 19th century
          have necessitated a modification of the legal view
          of public criticism; and the administrators of
          what we call democratic government have come to be
          looked upon as servants, bound to carry out their
          duties accountable to the public.

204.      Discussing the scope of freedom of expression, Rand J.
continued at page 288:
          
          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
          the crime [of seditious libel], 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 truth of
          things generally."

205.      The accused in Boucher was given a directed acquittal
by the majority of the Court.

206.      In the so-called Padlock Case [Switzman v Elbling
[1957] 7 D.L.R. (2d) 337], the Supreme Court of Canada sitting as
the full court held that a Quebec statute, The Communistic
Propaganda Act, was ultra vires the provincial government as
matter involving criminal law.  The statute made it illegal for a
person who possesses or occupies a house to use it or allow its
use to propagate Communism or Bolshevism and unlawful to print or
publish or distribute any newspaper or document or writing
propagating or tending to propagate Communism or Bolshevism, on
pain of imprisonment.  The act empowered the Attorney-General to
make a closing order for a period of not more than one year if a
house was used in violation of the prohibition..


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