Archive/File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press_Council-Submission.14 Last-Modified: 1998/09/21 304. This tribunal should note the scope of the request by the Press Council's Gerry Porter: The Applicant for access to records seeks: 1. All reports and studies prepared by social scientists, lawyers or other skilled advisors concerning the legislative objectives of Bill 33. This request relates to documents created before or after the enactment of Bill 33. 2. All reports and studies prepared by social scientists, lawyers or other skilled advisors relevant to whether the wording of Bill 33 is rationally connected to the legislative objectives of Bill 33. This request relates to documents created before or after the enactment of Bill 33. 3. All reports and studies prepared by social scientists, lawyers or other advisors relevant to whether the objectives of Bill 33 are logically furthered by the wording of Bill 33. This request relates to documents created before or after the enactment of Bill 33. 4. All reports and studies prepared by social scientists, lawyers or other skilled advisors which describe or identify alternative policy options to Bill 33, including inter alia, alternative statutory wording. This request relates to documents created before or after the enactment of Bill 33. 5. All reports and studies prepared by social scientists, lawyers or other skilled advisors concerning the effects of Bill 33 as compared to the alternative policy options This request relates to documents created before or after the enactment of Bill 33. 6. For the period from June 1, 1988 to February 29, 1996, all documents containing records, statistics, anecdotes, summaries or any other factual information about editorials or news stories in (a) newspapers and periodicals, or (b) television and radio broadcasts of the type that Bill 33 is designed and/or intended to prohibit. 7. All intra-departmental and inter- departmental memoranda or letters concerning the records described in paragraphs 1 to 6 above. 305. In RJR-MacDonald Inc. v Canada (A.G.),  3 S.C.R. 337, McLachlin J. stated at 338-339, 342, 346:  With respect to the minimal impairment element of the proportionality analysis, I accept Chabot J's finding [the trial judge] that the impugned provisions mandating a complete ban and unattributed package warnings do not minimally impair the right to free expression. Under the minimal impairment analysis, Chabot J. did not rely on problematic social science data, but on the fact that the government had adduced no evidence to show that less intrusive regulation would not achieve its goals as effectively as an outright ban. Nor had the government adduced evidence to show that attributed health warnings would not be as effective as unattributed warnings on tobacco packaging. As the second step in the proportionality analysis, the government must show that the measures at issue impair the right of free expression as little as reasonably possible in order the achieve the legislative objective. The impairment must be "minimal", that is, the law must be carefully tailored so that rights are impaired no more than necessary. [165_The government presented no evidence in defence of the total ban, no evidence comparing its effects to less invasive bans.  This omission is all the more glaring in view of the fact that the government carried out at least one study of alternatives to a total ban on advertising before enacting the total ban. The government has deprived the courts of the results of that study. The Attorney General of Canada refused to disclose this document and approximately 500 others demanded at the trial by invoking s. 39 of the Canada Evidence Act, R.S.B.C. 1985, C. c-5, thereby circumventing an application by the tobacco companies for disclosure since the courts lack authority to review the documents for which the privilege is claimed under s. 39. References to the study were blanked out of such documents as were produced: Reasons at Trial, at p. 516. In the face of this behaviour, one is hard-pressed not to infer that the results of the studies must undercut the government's claim that a less invasive ban would not have produced an equally salutary result.  ..Even on difficult social issues where the stakes are high, Parliament does not have the right to determine unilaterally the limits of its intrusion on the rights and freedoms guaranteed by the Charter. The Constitution, as interpreted by the courts, determines those limits. Section 1 specifically stipulates that the infringement may not exceed what is reasonable and "demonstrably justified in a free and democratic society", a test which embraces the requirement of minimal impairment, and places on the government the burden of demonstrating the Parliament has respected that limit. This the government has failed to do, notwithstanding that it had at least one study on the comparative effectiveness of a partial and complete ban. In the fact of this omission, the fact that full bans have been imposed in certain other countries and the fact that opinion favouring total bans can be found, fall short of establishing the minimal impairment." 306. In the same case, Iacobucci J. stated at page 352:  Minimal impairment analysis requires this Court to consider whether the legislature turned its mind to alternative and less rights-impairing means to promote the legislative goal in question. In these appeals, I am concerned by the fact that the Attorney General of Canada chose to withhold from the factual record evidence related to the options it had considered as alternatives to the total ban it chose to put is place. it is no answer to this conduct to suggest, as my colleague La Forest J does, that part of the responsibility for this incomplete factual record lies with the appellants, purportedly owing to the fact that their counsel did not pursue every conceivable legal avenue in order to attempt to secure the publication of the undisclosed documents. I am reluctant to permit the justification of a conceded constitutional violation because of the inability of a party to the litigation to have pursued all possible avenues to obtain the non- disclosed information. These cases are of wide public interest constitutional litigation in which the government should remain non-adversarial and make full disclosure. Without this requirement, courts will be constrained to decide the constitutionality of legislation without full information. In any event, the burden of proof at the s. 1 stage lies solely with the government. 307. Accordingly, the Press Council respectfully submits that this Tribunal should draw an inference adverse to the government on all section 1 issues, in view of the government's clear refusal to disclose all relevant information. Rather than candidly disclose the government's complete basis for introducing section 7(1) of the Human Rights Code in 1993, the Ministry of the Attorney General and the Ministry of Multiculturalism expunged huge sections of their records and have successfully sought shelter behind the exemptions in sections 12, 13 and 14 of the Freedom of Information and Protection of Privacy Act. 308. It will be readily seen that the documents sought by Mr. Porter were highly germane to each stage of the step 2 analysis. Accordingly, there should be a strong presumption that the non-disclosed documents would not support the government's position. 309. The only records disclosed to Mr. Porter which on their face purport to identify actual factual incidents involving discrimination against minorities are the records number-stamped [Documents numbered 75, 76, 141, 142, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 230, 245-246]. 310. Pages 75,.76, 141, 142, 166, and 245-246 essentially are duplicates of one listing of incidents. In this submission, they are hereinafter referred to as "The Multiculturalism BC Incident List." 311. For the purpose of this aspect of the argument, the British Columbia Press Council asks this Tribunal to ignore bare, unsupported assertions in the other records that hate activity is on the rise. They are merely conclusory statements unsupported by evidence. 312. The examples of hate activity mentioned in The Multiculturalism B.C. Incident List are as follows: Some Recent Examples of Hate Activity in British Columbia October,1991) Pro-cult Institute distributed 500 pp. book, Stop Apologizing, to federal M.P.'s Book was a diatribe against visible minorities, gays and immigrants. (Nanaimo Times, Dec. 91) [Press Council: the provincial government has no jurisdiction, even under section 7(1), to prevent the dissemination of the book outside British Columbia to federal Members of Parliament. Further, there is no explanation given why the Criminal Code was not employed to prosecute the author or distributor. It is not clear whether the author of this document ever saw or read a copy of this book. A copy was not provided to this Tribunal. The Criminal Code is operative throughout Canada. It is not even stated whether a complaint was laid with police or crown counsel. With respect, even if this book offended new section 7, it would have been prevented or remedied by the Human Rights Code] November, 1991 Cross burned on lawn of Iranian household in North Vancouver. Residents moved, fearing for their safety. [Press Council comment: If the perpetrators were unknown, Bill 33 could have no greater remedial effect than the federal Criminal Code. If the perpetrators were known, did anyone lay a complaint with the police or with crown counsel. If so, were they told that a prosecution was not possible under the federal Criminal Code. The evidence submitted by the North Shore News suggests that this incident had nothing to do with racist speech [see hearing exhibit ......If it was racist speech, it could not have been prevented or remedied by section 7(1)] January,1992 American fugitive, G.A. Waddell, who has been linked to the ultra-violent white supremacist group Posse Comitatus, was arrested by Golden RCMP. Wadell awaits extradition on firearms offenses in Arizona. Dep. U.S. Marshal Engstrand is investigating possibility that Waddell was hidden by white supremacist sympathizers in Alberta and B.C. (Van.Sun., Jan. 92) [Press Council comment: The federal Criminal Code and federal Extradition Act appear to be operating here. Criminal law is within the exclusive legislative jurisdiction of the federal Parliament. Section 7(1) appears to have no potential application to this incident. It is inconceivable that section 7 of the Human Rights Code could have prevented or applied to Waddell's successful border crossing and concealment in Alberta and B.C.] March,1992 Federal Court bans Canadian Liberty Net from operating in Canada. It is a hate hotline promoting anti-Semitic and anti-foreigner statements. Liberty Net linked to hate groups operating out of Toronto: Heritage Front and the Aryan Nations. [Press Council comment: This federal Canadian Human Rights Act applies to this incident. The Human Rights Code has no application to telephonic communications, a federal undertaking. In any event, the Human Rights Code has no application to the Heritage Front or Aryan nations in Toronto. It is clear that this incident would have been prevented or remedied by Section 7(1)] May 1992 Council of Public Affairs (CPA) organizes "hatefest", inviting renowned hate propagandist and holocaust-deniers to Vernon for a conference on May 15-17 Included on the list of intended guest: Jim Keegstra, Malcolm Ross and Doug Christie. This conference was promoted by Canadian Liberty Net. Another hate meeting scheduled to take place in Salmon Arm was met with 150 local protesters . It was organized by the Council on Public Affairs and was attended by a representative from the Canadian League of Rights. (Vernon Daily News, May 1992) Vancouver Sun (May 14, 92) reports that the Vernon Conference took place without incident. [Applicant's comment: The Human Rights Code specifically exempts private communications. (Now Attorney General) Dosanjh told the Legislature "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..." Further, the affidavit of Gordon Priestman [Exhibit 61] makes it clear that this annotation is inaccurate. The Human Rights Code would in any event appear to have no application. If the meetings were indeed "hate fests" or "hate meetings", and advertised and presented as such, there is no explanation why complaints were not filed with the police or crown counsel under the federal Criminal Code? There is no explanation how this alleged incident could possibly justify applying the Human Rights Code to news stories and editorials, unless the government's intention is to prevent the news media from reporting such incidents, as the Vancouver Sun and Vernon Daily News did in this case. It seems obvious that suppression of such news stories would be a notorious violation of free speech rights.] July,1992 Canadian Liberty Net operators found in contempt of Court for re-routing hotline through Bellingham phone number. The Vancouver number still operates to refer Bellingham number and to solicit funds to support their legal defense. [Press Council's comment: The federal Canadian Human Rights Act applies to telephonic communications of hate propaganda. The Human Rights Code no application to telephonic communications, a federal undertaking. Nor would the Code have any application to the Bellingham number, because British Columbia cannot legislate for Washington state. It is clear that this incident would not have been prevented or remedied by the Human Rights Code. Nor would the Human Rights Code apply to prevent the Canadian Liberty Net from soliciting funds to support their legal defense of charges of contempt of court] July, 1992 Pro-cult Institute opens an office on Water Street, Vancouver. They are in the process of organizing a provincial party. [Press Council's comment: The Press Council has never heard of the pro-cult incident. No facts are provided. This entry does not allege that it distributes hate propaganda. If it does, there is no explanation whether a complaint was filed with the police or with crown counsel. It seems clear that this incident, about which no detail is provide, could not have been prevented or remedied by the Human Rights Code.] 313. None of incidents in The Multiculturalism B.C. List occurred in the nearly year-long period leading up to the enactment of section 7(1) on June 22, 1993. The last alleged incident on the List occurred in July, 1992. 314. The various photocopied flyers [number-stamped pages168, 169,170, 73174,175, 76] appear to have been anonymously distributed. Certainly, they are not newspaper extracts. Most appear to originate in the United States, which is beyond the reach of provincial statute. No explanation is given about their significance or why the federal Criminal Code would not be effective if the perpetrators could be identified. 315. Newspaper stories are copied [ number stamped pages 177, 178, 179, 180, 181, 82, 183, 184, 185]. It seems obvious that the Human Rights Code would not prevent or remedy the events reported in those documents. For example, 178 reports that "hate- message line back in operation in Surrey." As noted above, that is a matter within the jurisdiction of the federal Human Rights Council under s. 13(1) of the federal statute. It is also obvious that if the Human Rights Code is designed to prevent newspapers from publishing such articles, that would be unconstitutional. 316. The government's factual case in the FOI materials seems to consist almost exclusively of newspaper clippings or annotations prepared by the Multicultural Division. This puts the government records, as disclosed, on a par with an elementary school research project. 317. The government did not provide any evidence of consideration of other options. The Attorney General should have made complete disclosure to this Tribunal of all options considered for the amendment to the Human Rights Code; all advice concerning the need for an amendment with the particular attributes and defects complained of in this submission; and all reservations about the constitutionality of this legislation. Instead, as may be seen from Exhibit 57, tab D, pages 49-51, the government specifically refused even to identify the "Options to Amend bill 33 Re: "Freedom of Expression" prepared by the Legal Services Branch. 318. It is appalling that the government did not strike a Special Committee of the Legislature to review the parameters of this legislation and to hear submissions from the public, including the news media, concerning the potential impact on the public's free speech rights. (CC) The Press Council Complaints Procedure Which Is Available To the Public Is A Preferred Alternative, In A Free And Democratic Society, To Government Censorship Of The News Media 319. Gerry Porter, the Executive Secretary of the Press Council, testified by affidavit [Exhibit 56] that the Press Council is a non-profit society duly incorporated under the Societies Act of British Columbia to defend freedom of the press and to provide the public with a no-cost, non-judicial method of hearing complaints against the press. 320. The current mandate of the Press Council is to serve as a medium of understanding between the public and the press; to consider complaints from the public about the conduct of the press in gathering of news and opinion; to encourage high ethical and professional journalism standards; to preserve the established freedom of the press, and to review and report to its members concerning any attempts to restrict access to information of public interest. 321. Press Council hearings are conducted by a panel drawn from the Board of Directors of the Press Council. A majority of the Press Council's directors are public members with no connection to the press. Moreover, it is a panel of public members only which has the sole authority to determine if a complaint should be summarily rejected before hearing. The Press Council sits as a panel of the whole four times a year to hear complaints. 322. The complaint system administered by the Press Council is cost-free to complainants. It is a system which allows the public to know what has occurred in a particular complaint, and the newspaper and journalist in question to correct or modify, if necessary, their reporting methods without fear of retribution. 323. The Press Council has adopted a Code of Practice which is the principal guideline used by the Press Council in considering complaints from the public about the conduct of the press in gathering and publication of news and opinion. 324. The Press Council has the authority, by contract with its member newspapers, to require that its adjudication of a complaint be published by the newspaper which is the subject of a complaint together with any recommendations or observations by the Press Council. This authority exceeds that conferred by the Human Rights Code on this Tribunal. 325. The Press Council fulfills a useful function for society in that complaints can be discussed in an open manner without the fear of penalty for either the complainant or the newspaper. For the most part, publishers and editors of member newspapers have been conscientious in publishing adjudications, along with the Press Council's reservations, recommendations, and observations. It is a simple and efficient system. 326. The Press Council's Code of Practice, stipulates in part: " Discrimination 13. Unless the information is directly relevant to the story, newspapers should not publish material likely to encourage discrimination on grounds of race, colour, sex, sexual orientation, age, mental or physical disability and should avoid reference to the above in prejudicial or pejorative contexts."
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