Archive/File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press_Council-Submission.03
Last-Modified: 1998/09/21

DETAILS OF THE LEGAL ARGUMENT OF THE BRITISH COLUMBIA PRESS COUNCIL

      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."

46.       The Press Council intervenes solely on the
constitutional issues.  The outcome sought by the Press Council
is best explained by reference to s. 52 of the Constitution Act,
1982, which provides:
       
                 52.(1) The Constitution of Canada is the supreme law of
          Canada, and any law that is inconsistent with the provisions of
          the Constitution is, to the extent of the inconsistency, of no
          force or effect.
          

47.       In view of the law and the evidence before this
Tribunal, the Press Council respectfully submits that this
Tribunal should dismiss the complaint on the basis that section
7(1) of the Human Rights Code is inconsistent with the guarantee
of free speech contained in section 2(b) of the Canadian Charter
of Rights and Freedoms and is therefore of no force and effect.
That guarantee reads as follows:
       
                 Fundamental Freedoms
          
       
         2.  Everyone has the following fundamental
          freedoms:
          
         _
          
         (b)  freedom of thought, belief, opinion and
          expression, including freedom of the press
          and other media of communication;
          

48.       The Press Council does not ask the Tribunal to make a
prerogative declaration that section 7(1) of the Human Rights
Code violates the Charter because only a superior court has the
inherent jurisdiction to grant such a declaration of invalidity.
The Press Council merely asks the Tribunal to apply the law and
to find that this whole proceeding, including the filing of the
complaint, the investigation, the decision to refer the complaint
for hearing, the notice of hearing dated May 5, 1997, and this
hearing itself were an unjustifiable infringement of Charter
rights enjoyed by the newspaper and its columnist.

49.       The authorities are clear that this Tribunal has the
power to entertain Charter arguments on the constitutionality of
section 7(1) for the purpose of determining whether the
jurisdiction over group libel purportedly conferred on the
Tribunal by the Human Rights Code (its enabling statute) is
constitutionally valid:
     
                Cooper  v. Canada (Human Rights Council),  [1996]
          3 S.C.R. 854
     
          Nealy  v.  Johnston  (1989), 10 CHRR  D/6450  (Canadian
          Human Rights Tribunal)
     
          Canada  (Human Rights Commission) v. Taylor,  [1990]  3
          S.C.R. 892
     
          Cuddy  Chicks  Limited  v.  Ontario  (Labour  Relations
          Board), [1991] 2 S.C.R.S.

50.       In Cooper, La Forest J. (Sopinka, Gonthier and
Iacobucci JJ. concurring) stated:
     
               46     If a tribunal does have the power to consider
          questions of law, then it follows by the operation of s. 52(1)
          that it must be  able to address constitutional issues, including
          the constitutional validity of its enabling statute. This
          principle was clearly enunciated by this Court in Cuddy Chicks,
          supra, at pp. 13-14, referring to the earlier decision in Douglas
          College, supra, in the following passage:
          
               The power of an administrative tribunal to
               consider Charter issues was addressed recently by
               this Court in Douglas/Kwantlen Faculty Assn. v.
               Douglas College, [1990] 3 S.C.R. 570. That case
               concerned the jurisdiction of an arbitration
               board, appointed by the parties under a collective
               agreement in conjunction with the British Columbia
               Labour Code, to determine the constitutionality of
               a mandatory retirement provision in the collective
               agreement. In ruling that the arbitrator did have
               such jurisdiction, this Court articulated the
               basic principle that an administrative tribunal
               which has been conferred the power to interpret
               law holds a concomitant power to determine whether
               that law is constitutionally valid. This
               conclusion ensues from the principle of supremacy
               of the Constitution:
     
               ....There is no doubt that the power to
          consider questions of law can be bestowed on
          an administrative tribunal either explicitly
          or implicitly by the legislature...There
          being no such express authority, it becomes
          necessary to determine whether Parliament has
          granted it implicit jurisdiction to consider
          such questions. As stated in Cuddy Chicks,
          supra, at p. 14:
          
                [J]urisdiction must have expressly or impliedly
               been conferred on the tribunal by its enabling
               statute or otherwise. This  fundamental principle
               holds true regardless of the nature of the issue
               before the administrative body. Thus, a tribunal
               prepared to address a Charter issue must already
               have jurisdiction over the whole of the matter
               before it, namely, the parties, subject matter and
               remedy sought.
     
          47     In considering whether a tribunal has
          jurisdiction over the parties, the subject
          matter before it, and the remedy sought by
          the parties, it is appropriate to take into
          account various practical matters such as the
          composition and structure of the tribunal,
          the procedure before the tribunal, the appeal
          route from the tribunal, and the expertise of
          the tribunal.
     
          64 ...tribunals have been recognized as having
          jurisdiction to interpret statutes other than the
          Act (see Canada (Attorney General) v. Druken,
          [1989] 2 F.C. 24 (C.A.)) [our note:  a Human
          Rights Tribunal case] and as having jurisdiction
          to consider constitutional questions other than
          those noted above. In particular, it is well
          accepted that a tribunal has the power to address
          questions on the constitutional division of powers
          (Public Service Alliance of Canada v. Qu'Appelle
          Indian Residential Council (1986), 7 C.H.R.R.
          D/3600 (C.H.R.T.)), on the validity of a ground of
          discrimination under the Act (Nealy v. Johnston
          (1989), 10 C.H.R.R. D/6450 (C.H.R.T.)), and it is
          foreseeable that a tribunal could entertain
          Charter arguments on the constitutionality of
          available remedies in a particular case (see
          Canada (Human Rights Commission) v. Taylor, [1990]
          3 S.C.R. 892).

51.       In the instant case, of course, section 7(1) is not a
"limiting provision" as was the provision under consideration in
Cooper which disentitled the Tribunal in that case from ruling on
its validity.  Accordingly, the Press Counsel respectfully
submits that this Tribunal has jurisdiction in this case to
consider not only general legal questions, but the constitutional
submissions of the British Columbia Press Council.

           In  June  1993  The  New Democratic  Party  Government
Amended  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 Section 7(1)  Of
The  Human  Rights  Code  Is  An Unreasonable  And  Unjustifiable
Infringement Of The Free Speech Rights Guaranteed By The Charter.

52.       In view of the scope of its intervenor status, the
Press Council makes no submissions on the issue whether
"Swindler's List" actually violates section  7(1)  of the Human
Rights Code, which reads as follows:
     
               Discriminatory publication
     
     7. (1) No person shall publish, issue or display or cause to be published,
          issued or displayed any statement, publication, notice, sign, symbol, emblem or
          other representation that
               
                    (a)  indicates discrimination or an intention to
                    discriminate against a person or a group or class of
                    person, or
               
                    (b)  is likely to expose a person or a  group
                    or class of persons to hatred or contempt
          
               because  of  the  race,  colour,  ancestry,  place
               of   origin,  religion,  marital  status,   family
               status,   physical  or  mental  disability,   sex,
               sexual  orientation  or  age  of  that  person  or
               that group or class of persons.
     
          (2)   Subsection  (1)  does  not  apply  to  a  private
          communication  or  to a communication  intended  to  be
          private.

53.       The Press Council submissions and its evidence
therefore relate exclusively to the constitutionality of the
Human Rights Code.  It is respectfully submitted that this
Tribunal must rule on the Charter issues irrespective of its
finding whether the column violates the Code.

54.       The Press Council submits that section 7(1) was
specifically designed by the Government to ensure that newspapers
are subject to its censorship provisions.

55.       The Affidavit of Gerald Albert Porter (Exhibit 57)
appends the government documents he obtained under the Freedom of
Information and Protection of Privacy Act.  Although those
documents have been heavily edited by the Government to reveal
very little about its internal discussions, the disclosed
material leads to the inescapable inference that the Government
determined from the case law about human rights legislation in
other Canadian provinces exactly how to draft section 7(1) to
ensure that newspapers were covered.

56.       Exhibit 57, tab E, pages 110-112, 155-171, discusses
the cases of Warren v Chapman and Sask. Human Rights Comm. v
Engineering Student's Society.  Although it is unclear who
prepared this  document, it  appears to be a memorandum of law,
and it shows why the Government employed the words "statement"
and "publication" in section 7(1).  Discussing prior court cases
on hate literature and hate propaganda, the memorandum states at
pages 156-157:
     
               In Warren v Manitoba Human Rights Commission (1985), 6
          C.H.R.R. D/2777, the Manitoba Court of Appeal held that a
          newspaper article did not fall within the Manitoba provision
          which included the words "(a) publish, display...or (b) permit to
          be published, displayed...in a newspaper...any notice, sign,
          symbol, emblem or other representation...." on the basis that the
          words "notice, sign, symbol, emblem" constituted a genus which
          did not include written statements and thus "other representation
          should take the same meaning."
     
          In Sask. Human Rights Comm. v Engineering
          Student's Society (1984), 5 C.H.R.R. D/2074 (Sask.
          Bd. of Inq.), reversed 7 C.H.R.R. D/3443 (Q.B.),
          (1989), 10 C.H.R.R. D/5636 (C.A.), issues of the
          Engineering Society newspaper were held not to
          fall within the wording of the Saskatchewan
          section: "publish or display, or cause or permit
          to be published or displayed....in a
          newspaper...any notice, sign, symbol, emblem or
          other representation..."because the content of a
          newspaper is not a "notice, sign, symbol, emblem
          or other representation."  The Court of Appeal
          noted that the section did not use the words
          "making statements" but "display or
          publication...of notice, signs..."  The Court of
          Appeal further held that the Board was wrong in
          looking at the issues as a whole rather than
          specific portions of this issues.  The Dissent, on
          the other hand, held that "notice" implies written
          words and that since human rights legislation is
          to be interpreted to give effect to its
          objectives, newspapers should be included in the
          section."

57.       Other portions of the disclosed Government
documentation also support the Press Council's submission in this
regard.  See Exhibit 57, tab E, page 159 (part of the memorandum
of law) which states:
     
               Section 2 in the B.C. Act is broader than sections from
          other jurisdictions which have been judicially interpreted.  The
          inclusion of the word `statement" seems to make it clear that
          section 2 encompasses written materials.  On this basis, both
          Warren and the Engineering Society case can be distinguished; the
          sections in question there did not include the word "statement"..
          My conclusion, therefore, is that under the wording of the
          section, written statements in books, newspapers and magazines
          etc. would be covered."

58.       On December 18, 1992, Shawn Buckley wrote to Mariann
Burka on the letterhead  of the British Columbia Council of Human
Rights, explaining the types of  "discriminatory publications"
clauses employed in other Canadian jurisdictions and breaking
them down into 4 categories.  That memorandum, Exhibit 57, tab E,
page 118, identifies the jurisdictions which prohibit the
promotion of "hatred" as including Canada and Saskatchewan [page
121] and refers to Warren v Chapman [123] stating inter alia:
     
               "The Court found that "notice, sign, symbol, emblem or
          other representation" did not include articles and editorials
          published in newspapers.  Consequently, a Human Rights Tribunal
          did not have jurisdiction to determine whether editorials
          published in the Winnipeg Sun violated the Act.  The editorials
          stated that an Indian person is " a drunk, a wastrel, an idle
          monger, a person who is only too happy to live on a government
          chequen, an in-breeder, a parasite, a non-contributor."

59.       On January 5, 1993 Mariann Burka, Director, wrote to
Ann Bozoian, Executive Director, Immigration Division, of the
British Columbia Council of Human Rights [Exhibit 57, pages 124-
125].  Burka summarizes the same four categories described by
Buckley, but describes category four somewhat differently:
       
            Broad protection which prohibits discriminatory publications
          and also prohibits the general promotion of hatred through
          publications or similar statements.  This is the broadest
          legislative language currently in existence because it prohibits
          either publications which have a discriminatory effect or which
          expose a group to hatred.

60.       Subsequent correspondence between Mariann Burka and
Shane Janzen, Director of Legislation, Legislative Services
Branch, concerning the draft legislative amendment have been
edited by the Government to the point where nothing informative
is disclosed. [pages 151, 152, 153,154]  Similarly, the memo from
Harinder Mahil, Chair of the British Columbia Council of Human
Rights, to Valerie Mitchell, Deputy Minister, dated May 21, 1993,
page 172, has been edited so heavily by that nothing is
disclosed.  The only logical inference to be drawn, however, is
that the Government specifically intended to bring newspapers
under the jurisdiction of the Human Rights Commission and the
Human Rights Tribunal.

Section 7(1) 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 Is Expression Which Exposes The Subject
Of The Expression To "Hatred, Ridicule Or Contempt."

61.       In the common law provinces and territories, a
publication which tends to lower a person' s reputation in the
estimation of right-thinking members of society generally or "to
expose a person to hatred, contempt or ridicule" is defamatory:
Cherneskey v Armadale Publishers Ltd., [1979] 1 S.C.R. 1067 AT
1079.

62.       The British Columbia Court of Appeal recited the same
definition in Mitchell v Nanaimo District Teachers Assn. (1994),
94 B.C.L.R. (2d) 81, per Southin J.A. (Ryan J.A. concurring) at
82:
     
     The first issue is a question of law:  is the
     publication capable of exposing to hatred and contempt.
     If that question is answered in the affirmative, it is
     then a question of fact whether it does so.

63.       The Mitchell case also confirms the long-standing legal
principle in civil defamation law that the court's determination
whether a statement is defamatory is a two-step process.  First,
it is a question of law for the judge alone whether the statement
is capable of exposing the plaintiff to hatred and contempt.
Only if the judge answers that question in the affirmative does
the trier of fact, whether it be a judge sitting alone or a jury,
proceed to determine whether in fact the statement exposes the
plaintiff to hatred or contempt.   Accordingly, this Tribunal
should also employ the two-step analysis in determining whether a
particular publication violates section 7(1).

Section 7(1) Of The Human Rights Code Therefore Clearly Creates A
Claim For "Group Defamation" But It Permits The Government To
Filter Such Claims And Requires That They Be Tried In A Legal
Environment Which Has None Of The Safeguards Associated With A
Civil Court Proceeding

This New Statutory Cause Of Action Is Not Reasonable.

64.       The Press Council, as noted above, is firmly of the
view that legal remedies for group defamation should be confined
to the criminal law as suggested by the New York Court of Appeals
in Ryckman v Delavan, 25 Wend. 186 (1840), per the Chancellor of
the New York Court of Appeal at 198.  That dictum was cited with
approval by the Ontario Court in Elliott et al. v Canadian
Broadcasting Corp. et al (1993) 16 O.R. (3d) 677 [Ont. Gen.
Div.], where  Montgomery J., considered an application to strike
a statement of claim filed on behalf of the surviving airmen of
Bomber Command against the CBC and others for publication of a TV
film and a book entitled "The Valour and the Horror -The Boys of
Bomber Command".  Per Montgomery J at 682-683.:
          
          "The Tort of Defamation
          
          The line drawn between private recognition and
          public debate has remained constant for 150 years.
          The defamation must be "of and concerning an
          individual".
          
          In Ryckman v Delavan, 25 Wend. 186 (1840), on
          appeal to the New York Court of Appeal, the
          Chancellor said, at p. 198:
               
               "General censure or reproof, satire or
               invective, directed against large
               classes of society, whether on moral,
               theological or political grounds, cannot
               ordinarily be prompted by individual
               malice or intended to produce personal
               injury.  The politician who assails the
               opposite party, the polemical divine who
               attacks the doctrine or discipline or
               another church or sect, or the moral
               satirist who lashes the vices or the
               foibles of his age and nation, ought not
               to be held responsible in private suits
               for the bold avowal of opinions true or
               false.  The principle upon which the
               civil remedy is allowed, does not apply
               here; and the great interests of society
               require that it should not be made to
               apply.  It is far better for the public
               welfare that some occasional
               consequential injury to an individual,
               arising from the general censure of his
               profession, his party, or his sect,
               should go without remedy, than that free
               discussion on the great question of
               politics, or morals, or faith, should be
               checked by the dread of embittered and
               boundless litigation.  When such
               publications so far transcend the limits
               of fair discussion or legitimate moral
               rebuke, as to threaten public injury,
               they are most effectually as well as
               most properly prevented or punished by
               public prosecution."

65.       The plaintiffs in Elliott alleged that the CBC film and
the book were "revisions of the historical record" and that "the
story is misleading and unbalanced and contains distortions and
untruths."  The plaintiffs alleged that "their honourable
discharges from active service have been denigrated by the film
and the book" which contain "words that do injury and harm to
their reputation."  Montgomery J. characterized these complaints
as defamation [at 682].  Because the defamation claim was not "of
and concerning an individual", he dismissed it relying on
extensive Canadian and British authorities denying civil claims
for "group defamation."  The Ontario Court also dismissed on the
grounds that the film and book were not defamatory - that neither
the book nor the film bore the interpretation given to them in
the statement of claim [at 688].
On appeal to the Court of Appeal,  Grange J.A. (LaBrosse J.A.
concurring) dismissed the appeal on the single and simple ground
that "The Valour and the Horror" contained no libel of the
plaintiffs: (1995), 25 O.R. (3d) 302.  Abella J.A., concurring in
result, stated in separate reasons at 307:

          
          Raising questions about wartime events in which
          thousands of aircrew died or were wounded
          defending countries and causes they believed in,
          may be painfully provocative.  But one cannot and
          should not inhibit the ongoing scrutiny of
          historical events. It is inevitable that searching
          through the past will provide a continuous yield
          of information which, in turn, applied by
          different expert minds in different ways to
          different information, will provide a continuous
          yield of historical opinion.  Some of that opinion
          will find general favour; some will not.  Either
          way, the exploration and continous curiosity about
          history is inevitable and desirable, however much
          we may quarrel with any given historian's
          application of historical opinion to historical
          fact.
          
          This does not, however, provide scope for
          defamation.  If the historical inquiry involves a
          deliberately harmful portrayal without an accurate
          foundation, it crosses the line from historical
          opinion into culpable conduct.  In my view, no
          such line has been crossed in this case.
          
          ...It is possible that not every viewer or reader
          will draw the appropriate impression from the
          material, but a reasonably informed one will.  We
          must, I think, assume a certain level of
          thoughtful awareness on the part of the public in
          deciding how certain information will affect its
          thinking.  If we tie the reasonableness of public
          perception in defamation cases to a "lowest common
          denominator," we create too low a threshold.
          Whatever we may criticize as inaccurate or
          misperceived or understressed in the film and its
          related publication, none of it challenges or
          undermines what we must assume most reasonably
          informed Canadians know to be the historical
          context of the film and book: that the Second
          World War was fought in Europe by Canada and the
          Allies to defeat Nazi Germany and prevent the
          unthinkable consequences of the spread of its
          power." [at 307-308].

66.       Abella J.A. declined to decide whether Montgomery J.
was correct in concluding that there cannot be a libel of a
25,000 member group, leaving that open for resolution at a future
time.  To date no Canadian Court has recognized a common law
cause of action for group defamation.

67.       Permitting groups to bring claims for damages or for
injunctions arising from alleged defamation of the group will
inevitably exacerbate tensions in our communities.  Groups will
tend to coalesce in support of either the complainant or the
respondent.  These groups may well form along racial, ethnic,
religious or other fault lines.  If the purpose of section 7(1)
is to enhance social harmony, it is likely to be counter-
productive.  Section 7(1) is more likely to increase social
discord.

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