Archive/File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press_Council-Submission.05
Last-Modified: 1998/09/21

83.       With the exception of Manitoba, every other human
rights statute in the provinces and territories which contains a
prohibition against "discriminatory publications" also contains
an exemption for the expression of opinion:
     
     1)   Alberta, Human Rights, Citizenship and Multiculturalism Act,
          section 2(2) states: "Nothing in this section shall be deemed to
          interfere with the free expression of opinion on any subject.";
2)   The Saskatchewan Human Rights Code states in section 14(2):
"Nothing in subsection (1) restricts the right to freedom of
speech under the law upon any subject."
3)   Quebec, Charter of Human Rights and Freedoms, article 3
states:  Every person is the possessor of the fundamental
freedoms, including freedom of conscience, freedom of religion,
freedom of opinion, freedom of expression, freedom of peaceful
assembly and freedom of association.";
4)   Newfoundland, Human Rights Code, section 14(2) states
"Nothing in this section interferes with the free expression of
opinions upon a subject by speech or in writing.";
5)   New Brunswick, Human Rights Code, section 6(2) states:
"Nothing in this section interferes with, restricts, or prohibits
the free expression of opinions upon any subject by speech of in
writing.";
     
     6)   Nova Scotia, Human Rights Act, section 7(2) states: "Nothing
          in this Section is deemed to interfere with the free expression
          of opinion upon any subject in speech or in writing."
     
     7)   Ontario, Human Rights Code, states in section 13(2):
          "Subsection (1) shall not interfere with freedom of expression of
          opinion.
     
     8)   Prince Edward Island, Human Rights Act, section 12(2)
          states: "Nothing in this section shall be deemed to interfere
          with the free expression of opinion upon any subject in speech or
          in writing.";
     
     9)   Northwest Territories, Fair Practices Act, states in section
          5(2): "Nothing in subsection (1) interferes with the free
          expression of opinion on any subject."

84.       The Manitoba Human Rights Code, although it lacks
explicit protection for freedom of expression of opinion, does
not apply to newspapers and does not contain a "group defamation"
provision of the type found in the British Columbia Human Rights
Code.  It does not prohibits messages that "explose a person or
group or class of persons to hatred or contempt".  Manitoba
prohibits "any sign, symbol, notice or statement that:

               (a)  discriminates or indicates intention to
               discriminate in respect of an activity or
               undertaking to which this Code applies; or

               (b)  incites, advocates or counsels discrimination
               in respect of an activity or undertaking to which
               this Code applies; unless bone fide and reasonable
               cause exists for the discrimination.

85.       The Canadian Human Rights Act does not apply to
newspapers.  The prohibition against speech in that statute
applies only to repeated telephonic communications.

86.       Accordingly, British Columbia is the only Canadian
jurisdiction with a Human Rights Code which lacks an exemption
for the expression of opinion but nevertheless prohibits
"discriminatory"  publications in newspapers.

87.       The Human Rights Code of the Yukon Territory, although
it does not contain a "discriminatory publications" prohibition
like the other provinces and territories, states in section 4:
"Every individual and every group shall, in accordance with the
law, enjoy the right to freedom of expression, including freedom
of the press and other media of communication."

88.       British Columbia, Alberta and Saskatchewan are the only
provinces which have a "group defamation" provision in their
Human Rights statute:
     
     1)   Alberta, section 2(1) states: "No person shall publish,
          issue or display or cause to be published, issued or displayed
          before the public any statement, publication, notice, sign,
          symbol, emblem, or other representation that _(b) is likely to
          expose a person or a class of person to hatred or contempt
          _because of the race, religious beliefs, colour, gender, physical
          disability, mental disability, age, ancestry, place of origin,
          marital status, source of income or family status of that person
          or class of persons."; [the underlined words differ from section
          7(1) of the British Columbia Human Rights Code.]
     
     2)   Saskatchewan, section 14(1), states: "No person shall
          publish or display, or cause or permit to be published or
          displayed, on any lands or premises or in a newspaper, through a
          television or radio broadcasting station or any other
          broadcasting device or in any printed matter or publication or by
          means of any other medium that he owns, controls, distributes or
          sells, any representation, including, without restricting the
          generality of the foregoing, any notice, sign, symbol, emblem,
          article, statement or other representation:_(b) which exposes, or
          tends to expose, to hatred, ridicules, belittles, or otherwise
          affronts the dignity of any person, any class of persons or a
          group of person:_because of his or their race, creed, religion,
          colour, sex, sexual orientation, family status, marital status,
          disability, age, nationality, ancestry, place of origin or
          receipt of public assistance."

89.       Of those free provinces, only British Columbia's
statute [as previously noted] does not exempt the expression of
opinion.

The Well-Established Defences In The Civil Law Or  In The
Criminal Law Are Missing From The Human Rights Code:

(A)  Innocent Intent Is Not A Defence

90.       Unlike the "wilful promotion of hatred" offence in
section 319(2) of the federal Criminal Code, it is no defence
under the Human Rights Code that a newspaper did not intend to
"expose a person ...to hatred or contempt." nor would it be a
defence for the newspaper to prove that it actually intended the
precise opposite; for example, that its publication was merely a
parody or satire which was misconstrued by the readers.

91.       Section 2 of the Human Rights Code makes it clear that
a guilty mind is not a pre-requisite to liability:
               
               Discrimination and intent
               
               2.  Discrimination in contravention of
               this Code does not require an intention
               to contravene this Code.

92.       Racial vilification offences have been part of the
Canadian Criminal Code since 1970.  The two main racial
vilification offences are "public incitement of hatred" and
"wilful promotion of hatred" under section 319 of the Criminal
Code.  Each of those offences requires mens rea  [Black's Law
Dictionary: A guilty mind; a guilty or wrongful purpose; a
criminal intent].  See R v Keegstra (1990), 61 C.C.C. (3d) 1,
[1991] 2 W.W.R. 1, [1990] 3 S.C.R. 697.

93.       The Criminal Code also prohibits advocating genocide in
section 318.  This offence also requires proof of mens rea.

94.       It is respectfully submitted that the failure to
provide for a defence of innocent intent, or innocent
dissemination, makes section 7(1) of the Human Rights Code
invalid.  The Code currently authorizes a complaint even against
those who merely sell or display (even without endorsing) the
politically unpopular expression of others.  Innocent residents
of British Columbia are a potential target of this censorship law
and can be "gagged" by an injunction, or ordered to pay damages,
for disseminating ideas which do not meet the statutory standard
for content.  Even works of art including paintings, photographs
and musical lyrics, whatever their purpose, are subject to
banning under the Human Rights Code.

95.       Amy Adler, in What's Left?: Hate Speech, Pornography,
and the Problem for Artistic Expression,  argues that in calling
for censorship, leftists endanger a great deal of activist
speech, particularly in the form of artwork, that in fact seeks
to undermine the very hate speech the censorship advocates
target.   Because much postmodern art appropriates the language
and images of hate speech in order to deconstruct or otherwise
subvert them, leftist attempts at censorship carry a grave danger
of silencing leftist activists.  Adler, an assistant professor of
law at New York University School of Law, states:
          
          Recently, in a startling reversal of tradition,
          the American political left has let out a cry for
          the censorship of speech.  With a symmetry so
          perfect it approaches artifice - and therefore is
          ironically suited to the problem of artistic
          expression - this new leftist movement mirrors the
          censorship of the right, leaving a large sector of
          speech doubly threatened from both opposing camps.
          [page 1500]
          
          _the left has increasingly attacked art,
          denouncing it as racist or sexist even when the
          artists responsible for the work claim that they
          intended to criticize racism and sexism.  How
          could this have happened?  How could leftist
          censors have generated theories that now threaten
          activist speech arising in their own communities?
          
          The answer stems from a dangerous combination of
          two factors: (1) the surprising nature of the new
          political art, and (2) the na‹ve interpretive
          theories that underlie the new censorship
          proposals.  Leftist censors have overlooked a
          dramatic shift in contemporary political and
          artistic speech that directly defies their
          theories - the move toward a subversive use of
          hate speech and pornography.  Thus, while leftist
          censors propose banning certain harmful words and
          images, a remarkable thing is occurring: activists
          and artists are increasingly using these same
          words and images as part of their political
          discourse. [page 1503]
          
          As legal theorists debate one another about
          banning the words and symbols that constitute hate
          speech, they have failed to notice that many of
          these words and symbols have taken an unforeseen
          twist.  Hate images that anti-hate speech
          theorists target serve as instruments of activism
          in the communities these theorists seek to empower
          through censorship.
          
          We need look no further for an example of this
          activist technique of repositioning hate speech
          than the central symbol of the AIDS activists
          movement: the pink triangle.  Now a symbol of
          empowerment for a marginalized group, the pink
          triangle derives not from a proud moment in gay
          history but from a tragic one, the Holocaust, when
          homosexuals were slaughtered and the pink triangle
          was the equivalent for homosexuals of the yellow
          star for Jews.  This symbol of hatred and
          victimization, now turned right-side up, has
          become the sign of awareness, liberation, and life
          and death stakes in quite another context. [page
          1520]
          
          In a similar reversal, the word "queer", an
          epithet connoting not just hatred but often
          impending violence - "queer bashings" -has given
          birth to a militant gay activist group, "Queer
          Nation".  This group wears the epithet of hatred
          as a badge of pride.  Indeed, the word "queer"has
          become the word of choice for may gays and
          lesbians_
          
          Similar reversals are occurring with other hate
          speech words.  Even the hateful word "nigger" has
          taken on an activist use, functioning, for
          example, as part of the title of the rap band
          N.W.A. ("Niggaz with Attitude").  Although the
          term "nigger" has long been an element of black
          vernacular, the word has recently emerged into the
          mainstream, primarily through rap music, and has
          come to be viewed by some as a term of empowerment
          when used by blacks. [page 1521].
          
          Consider from this perspective one of the most
          important targets of the leftist censors:  the
          symbols generated by and associated with the Ku
          Klux Klan.  While the sight alone of a white Klan
          robe can conjure up tremendous psychic pain and
          fear for blacks, these same images provide fodder
          for anti-Klan speakers; the work they produce is
          sometimes even difficult to distinguish from pro-
          Klan propaganda.  Andres Serrano, the
          Hispanic/balck artist who achieved notoriety when
          Senator Jesse Helms singled out a Serrano
          photograph entitled Piss Christ in a show
          partially sponsored by the National Endowment for
          the Arts ("NEA"), went on to make enormous, even
          regal, even glorious color photographs of Klansmen
          in their white robes.  One might interpret these
          photographs as conveying a powerful anti-Klan
          message.  But how do we know that these presumably
          activist images are intended as such, or actually
          function in an activist role?  And if indeed the
          work does play an activist anti-Klan role, is
          there a rule of censorship that would exempt
          Serrano's photographs while banning other symbols
          of the Klan that perpetuate rather than protest
          its racist agenda?[1522-1523]
          
          Any theory that purports to regulate speech must
          make certain assumptions about how speech works.
          The theory must grapple with language's
          complexities.  it must recognize that a large and
          beautiful portrait of a Klansman may fight racism,
          a violent picture of a rape may oppose sexual
          violence, and a call to kill "queers" may be a
          call to save lives.  So far though, leftist
          censors have devised only a rudimentary theory of
          interpretation.  Ignoring the indeterminacy of
          language, they imagine a world where all victims
          know a victimizing statement from a non-
          victimizing statement, where victimizing speech
          never has its opposite effect, and where words
          have only one meaning.  If they acknowledge at all
          that speech may have multiple meanings, the
          leftists censors assume those meanings are easily
          discerned by investigating the identities or
          mindsets of speaker and listener.  Denying the
          complexity of language, these theorists go on to
          draft definitions of speech that ignore the
          reality of the very speech most precious to their
          causes.
          
          Because of the indeterminate nature of language
          itself - the way in which, for example, well-
          intentioned activist speech and oppressive hate
          speech can have similar effects - there is no
          possibility of devising a system of leftist
          political censorship that could protect the
          subversive, activist use of speech and
          pornography.  Intention and effects are ultimately
          disjointed.  "Misinterpretation" is inevitable.
          Speech functions in multiple and contradictory
          ways.  Leftists must therefore make a choice:
          they can adopt a system of censorship, or they can
          offer full protection to activism.  They can't do
          both. [Page 1571-1572]

96.       Like the hate propaganda offences in the Canadian
Criminal Code, the South African censorship laws other than its
Publications Act [which is similar to B.C.'s Human Rights Code]
create hate speech offences which require guilty intent:
            
            1)   Section 29(1) of the Black Administration Act, 1927, made
            it an offence for any person to "utter any words or to do any act
            or thing whatever (which would include the publication of any
            matter ) with intent to promote any feeling of hostility between
            Blacks and Europeans;"
            
            2)   Section 1 of the Second General Law Amendment Act, 1974,
            made it an offence for any person to utter  "words or perform_
            any other act with intent to cause, encourage or foment feelings
            of hostility between different population groups of the
            Republic";
            
            3)   Section 2(2) of the Terrorism Act lists the "causing or
            encouraging or furthering of feelings of hostility between the
            White and other inhabitants of the Republic" as one of the
            `results' of a number of different actions.  If any of these is
            committed and its likely result is one of those listed, a very
            serious offence is committed.  The onus is upon the accused to
            prove beyond a reasonable doubt that he did not commit the act
            with that purpose."

97.       Some critics, including the Government,  argue that the
federal Criminal Code, which requires proof of intent beyond a
reasonable doubt, makes enforcement of the hate propaganda
offence provisions difficult.

98.       The Government had a number of options, however, for
dealing with intent in section 7(1) of the Human Rights Code,
without employing the criminal law standards of proof beyond a
reasonable doubt:
     
     1)   the Human Rights Code might have explicitly required that
       the complainant prove intent to the civil standard, namely on a
       balance of probabilities;
2)    the Human Rights Code might have shifted the onus to prove
an innocent intent or a lack of guilty intent to the person who
is the subject of a complaint.

99.       Even giving the Government the benefit of the doubt and
assuming that it genuinely intended to suppress only extreme hate
speech with the Human Rights Code, the absence of an "intent"
requirement is grossly inconsistent with its purpose.  If the
expression of a speaker or publisher had an innocent intent, but
accidentally runs afoul of section 7(1) of the Human Rights Code,
the possibility of deterrence never arises unless everyone
reduces their speech to bland pablum or simply decides to remain
silent.



     Under The Human Rights Code, There Are No Defences
Once The Tribunal Finds That The Expression Complained
Of Is Defamatory

(B)  Truth Is Not A Defence

100.      In Irwin Toy Limited v Quebec (A.G.), [1989] 1 S.C.R.
927,  Dickson C.J. (Lamer and Wilson JJ concurring) discussed (at
976) the nature of the principles and values "underlying the
vigilant protection of free expression in a society such as ours"
and stated: "(1) seeking and attaining the truth is an inherently
good activity".

101.      Truth is a defence to a charge of wilful promotion of
hatred of identifiable groups under section 319 (2) of the
Criminal Code, which provides:  "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."  Section 319(3) provides: "(3) No person shall be
convicted of an offence under subsection (2) (a) if he
establishes that the statements communicated were true."  Note
that the onus of proof is reversed and falls upon the accused.

102.      Similarly, the Criminal Code offence of "defamatory
libel" of individuals is subject to a defence of truth.  Section
298. (1) defines "defamatory libel" to mean "matter published,
without lawful justification or excuse, that is likely to injure
the reputation of any person by exposing him to hatred, contempt
or ridicule, or that is designed to insult the person of or
concerning whom it is published." [emphasis added].
"Justification" in this context may include truth.  In any event,
section 311 provides: "No person shall be deemed to publish a
defamatory libel where he proves that the publication of the
defamatory matter in the manner in which it was published was for
the public benefit at the time when it was published and that the
matter itself was true."

103.      In R. v Keegstra, [1990] 3 S.C.R.  697, the majority [4-
3] upheld the reverse onus clause with respect to the defence of
truth defined in section 319(3) of the Criminal Code, which
required the accused to prove the truth of his or her group
defamation on a balance of probabilities.  ["The reverse onus in
the truth defence operates so as to make it more difficult to
avoid conviction where the wilful promotion of hatred has been
proven beyond a reasonable doubt.  Second, the section also
represents a minimal impairment of the presumption of innocence.
By requiring the accused to prove that his statements are true on
a balance of probabilities, Parliament made a concession to the
importance of truth in freedom of expression values without
excessively compromising the effectiveness of s. 319(2)].

104.      Similarly, in a civil defamation lawsuit in the common
law provinces, truth is an absolute defence. The defence does not
need to prove every minor detail of the defamatory allegations.
It is sufficient to prove the truth of the "sting" or "bite' or
"gist" of defamation.  Moreover, even malicious publication of
the truth is not actionable.  In fact, the defence of truth will
succeed even if the defendant did not know that the defamatory
statement was true when it was published and believed it to be
false at that time.  Carter-Ruck on Libel and Slander  states at
92-93:
          
          It has always been a complete defence to a civil
          action for defamation to prove that the words or
          matter complained of are true, for `the law will
          not permit a man to recover damages in respect of
          an injury to a character which he either does not,
          or ought not, to possess' [Per Littledale J. in
          McPherson v Daniels (1829) 10 B & C 263). (It is
          to be noticed that although the judge speaks here
          of character, the law of defamation is concerned
          not with character but with reputation, a
          distinction which causes some difficulty with
          regard to the kind of evidence which can be given
          in an attempt to mitigate damages.  A defence of
          this kind is called a plea of justification (in
          Scotland a plea of veritas) and the plea is
          usually in the following form: `the words
          complained of are true in substance and in fact.'_
          
          In order to succeed upon a plea of justification
          the onus lies upon the defendant to prove that the
          whole of the defamatory matter complained of, that
          is to say the words themselves and any reasonable
          inference to be drawn from them, are substantially
          true.  `When a plea of justification is pleaded,
          it involves the justification of every injurious
          imputation which a jury may think is to be found
          in the alleged libel'. [Digby v Financial news
          Ltd. [1907] 1 KB 502, CA per Collins MR at 507]
          In every action for defamation the court starts
          with the presumption that the words complained of
          are false until the contrary is established.  Any
          statement which alters the character of the main
          imputation or adds to its sting must be justified.
          The precise charge must be proved.  On the other
          hand for the defence to be successful it is not
          necessary that every `t' should be crossed and
          every `i' dotted; it is sufficient if the
          substance of the libellous statement be justifed.
          `As much must be justified as meets the sting of
          the charge, and if anything be contained in the
          charge which does not add to its sting, that need
          not be justified.' [Belt v Lawes (1882) 51 LJQB
          359].

105.      The Human Rights Code does not provide a defence of
truth to a complaint of "group defamation" made pursuant to
section 7(1).

106.      The Press Council respectfully submits that a group
defamation law which does not recognize a defence of truth cannot
be regarded a reasonable or as demonstrably justified in a free
and democratic society.  At a bare minimum, the Human Rights Code
ought to have incorporated a defence of truth subject to a
reverse onus clause, which would place a burden of proof on the
defendant to prove the truth of his or her defamatory statement
on a balance of probabilities.

107.      In this regard, the British Columbia Human Rights Code
censorship clause mirrors the failure of apartheid South Africa
to provide a truth exemption from the censorship provisions of
its Publications Control Act.  Louise Silver, in A Guide to
Political Censorship in South Africa (April 1984), quoted from a
South African ruling on a complaint about an anti-Jewish pamphlet
published by a Muslim group which criticized the Israeli invasion
of Lebanon (at pages 50-51): "So, too, an attack on Prime
Minister Begin in a propaganda pamphlet $48,000 Reward (202/82),
published by a Muslim publisher, was held to engender animosity
towards the Jewish section of the South African community and
against the Muslim section of the South African community.  It is
not for this Board to go into the merits, truths, or untruths in
this publication.   [underlining added].

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