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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