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 self-censorship." 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 constitutional. 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,  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,  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.,  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,  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,  A.C. 495 at p. 506 Now before discussing the case of Allen v Flood,  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,  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,  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 conclusion. 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 confession. More recently, in DeSousa v The Queen,  2 S.C.R. 944 the Court similarly rejected an argument that certain dicta in Smithers v The Queen,  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 origin." (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 conviction (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" 319. (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 conviction (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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