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Archive/File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press_Council-Submission.02
Last-Modified: 1998/09/21

OVERVIEW: THE LEGAL ARGUMENT OF THE BRITISH COLUMBIA PRESS COUNCIL

33.        The Canadian Charter Of Rights And Freedoms guarantees
the   fundamental  freedom  of  `thought,  belief,  opinion   and
expression,  including freedom of the press and  other  media  of
communication...subject only to such reasonable limits prescribed
by  law as can be demonstrably justified in a free and democratic
society." [emphasis added]

34.        In  June  1993  the  New Democratic  Party  government
amended  section 7(1) of the British Columbia Human  Rights  Code
and  instituted  a regime of censorship over a  wide  variety  of
expression  which is not criminal.  It is respectfully  submitted
that   this   amendment  is  an  unreasonable  and  unjustifiable
infringement of the free speech rights guaranteed by the Charter.

35.        Section  7(1)  now prohibits any expression  which  is
"likely  to  expose a person or a group or class  of  persons  to
hatred  or  contempt" because of certain enumerated criteria.   A
classic definition of "defamation" is that it exposes the subject
of  the  expression  to  "hatred, ridicule  or  contempt."   This
provision  therefore  creates a form of civil  claim  for  "group
defamation"  but the Code permits the government to  filter  such
claims  and  requires that they be tried in a  legal  environment
which  has  none  of  the safeguards applicable  to  civil  court
proceedings.

36.       This new statutory cause of action for group defamation
is  not  reasonable.  Unlike the long-recognized civil  cause  of
action  in the courts for individual defamation, or the  criminal
libel  offences defined in  the federal Criminal  Code,   section
7(1) of the Human Rights Code imposes a form of  strict liability
on  the  defendant.  Under the Human Rights Code,  there  are  no
defences once the Human Rights Tribunal finds that the expression
complained  of is defamatory.  The well-established  defences  in
the civil or criminal law are missing from the Human Rights Code:

               (A)              Innocent intent is not a defence;

               (B)                        Truth is not a defence;

               (C)   Fair comment on true facts is not a defence;

               (D)Publication in the public interest and for the public benefit is
               not a defence;

               (E)Genuine artistic, academic, scientific or research purpose is not a
               defence;

               (F)Opinion expressed in good faith on a religious subject is not a
               defence;

               (G)Expression in good faith pointing out for the purpose of removal,
               matters producing or tending to produce feelings of hatred is not a
               defence;

               (H)       Innocent dissemination is not a defence;

               (I)Reports of public meetings, court proceedings, and other public
               proceedings are not defensible on the grounds of privilege.

37.        In  addition, the Human Rights Code gives no value  or
recognition  whatsoever to freedom of expression in  a  free  and
democratic  society.  In this regard, the Code differs  from  the
international  treaties  concerning human  rights  and  from  the
statutes of many other democratic jurisdictions including all  of
the  other  Canadian provinces, except Manitoba, which  does  not
contain a "group defamation" provision of the type found  in  the
Code..

38.        Further,  the  procedural safeguards  available  to  a
defendant in a civil court action for defamation are missing from
the Human Rights Code:

               (J)A single-person Tribunal will judge what millions of British
               Columbians are entitled to hear, read or view ( subject to a narrow
               possibility of judicial review).  The Human Rights Code does not
               permit the defendant to be tried by  a jury drawn from the community,
               an absolute right of the defendant in a civil court action;

               (K)The defendant has no right to appeal from the verdict of the Human
               Rights Tribunal to the courts, or even to an Appeal Panel in the Human
               Rights hierarchy as no such Appeal Panel exists.  The defendant may
               apply by petition to the Supreme Court of British Columbia for a
               "judicial review" but that process involves significant limitations
               which would not apply to a true right of appeal.

               (L)The members of the Human Rights Tribunal who are appointees of the
               Provincial Cabinet, do not enjoy the constitutional independence and
               tenure prescribed for superior court  judges by section 96 of the
               Constitution Act, 1867 [formerly the British North America Act];

               (M)The Human Rights Code does not require the complainant to file
               formal pleadings to define his or her precise allegations, nor does it
               require the complainant to submit to oral examination for discovery by
               the defendant, or to produce all relevant documents prior to trial so
               that the defendant can prepare and avoid being taken by surprise;

               (N)The Human Rights Code, unlike the court Rules which are applicable
               to a civil defamation action, does  not permit a defendant to obtain
               pre-trial statements from uncooperative witnesses or to obtain
               compulsory pre-trial production of relevant documents from non-
               parties;

               (O)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 obtain and execute search warrants
               against a defendant even before a complaint is accepted for hearing;

               (P)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;

               (Q)The Human Rights Code does not allow a defendant to recover any
               portion of the legal costs involved in defending a non-meritorious
               complaint;

               (R)The Human Rights Code specifically provides that the ordinary rules
               of evidence observed by a court, which are designed to ensure a fair
               hearing, will not apply to the hearing of a complaint of group
               defamation.

39.       The Human Rights Code also confers a totally
unwarranted jurisdiction on the Human Rights Tribunal:

               (S)to prohibit expression relating to subjects within the exclusive
               jurisdiction of the Parliament of Canada;

               (T)to award damages to a complainant, unlimited by any statutory
               ceiling, which may be automatically filed as an Order of the Supreme
               Court of British Columbia (although it is no such thing) and enforced
               by execution proceedings against the assets of the defendant;

               (U)to permanently prohibit "similar" expression with no opportunity
               for future reconsideration.

40.            Section  7(1)  of  the Human Rights  Code  is  not
               demonstrably justifiable.

41.       Section 7(1) was enacted in 1993 [then numbered section
2(1)], nearly a quarter of a century after the federal hate laws
came into force in the Criminal Code.  The Criminal Code applies
uniformly across Canada, ensuring that the country is not
balkanized into different zones where Canadians enjoy different
liberties of expression.  The Human Rights Code would restrict
the speech rights of British Columbia residents more severely
than the laws of any other province.

42.       Section 7(1) was enacted despite decades of remarkable
progress in the reduction in racism and ethnic tension in this
Province.  There is clearly no need for this legislation.

43.       Section 7(1) of the Human Rights Code is unnecessary:

               (V)The federal Criminal Code has created the offence of advocating
               genocide in section 318;

               (W)The federal Criminal Code has created the offence of public
               incitement of hatred in section 319(1);

               (X)The federal Criminal Code has created the offence of wilful
               promotion of hatred in section 319(2);

               (Y)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;

               (Z)The Civil Rights Protection Act, R.S.B.C. 1996, c. 49, creates a
               civil cause of action for libel of a class;

               (AA)State-sponsored, church-sponsored, officially sponsored racism is
               non-existent;

               (BB)Privately-sponsored racism is virtually non-existent and is
               generally stigmatized by the community including most journalists and
               other writers;

               (CC)There is no evidence of a surge, or even the real risk of a surge,
               in racist incidents in British Columbia.

44.       Finally, the Press Council takes the position that:

               (DD)         Censorship is inherently undesirable;

               (EE)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;

               (FF)The alleged harm of hate speech has been greatly over-stated by
               the Government, and is not a valid basis for restricting speech which
               is not criminal.

45.       Accordingly, the Press Council respectfully submits
that section 7(1) of the Human Rights Code, R.S.B.C.1996, c. 210,
is of no force and effect by virtue of section 52(1) of the
Constitution Act, 1982 and therefore cannot form the basis of a
verdict against the North Shore News or Doug Collins.


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