Shofar FTP Archive File: orgs/canadian/bc/Human-Rights-Commission/Collins-01-Press-Council-Submission.14
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.), [1995] 3 S.C.R.
337, McLachlin J. stated at 338-339, 342, 346:
[152] 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.
[160]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.
[166] 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.
[168] ..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:
[186] 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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