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" complaints. 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 jurisdiction. 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,[  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),  13 C.H.R.R. D/435, R v .Zundel,  2 S.C.R. 731, and R. v Butler,  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 contravention." 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 Justifiable. 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,  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  1 S.C.R. 826; R v Andrews  3 S.C.R. 451; Irwin Toy Ltd. v Quebec  1 S.C.R. 927; R v Zundel,  2 S.C.R. 731; RJR-MacDonald Inc. v Canada  3 S.C.R. 199 and others. 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. Proportionality (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; and (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,  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 rights. 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) ruled: 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 available; iv) all possible ways to limit the specific publication ban must be considered and the judge must limit the ban as much as possible; 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,  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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