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),  3 S.C.R. 854 Nealy v. Johnston (1989), 10 CHRR D/6450 (Canadian Human Rights Tribunal) Canada (Human Rights Commission) v. Taylor,  3 S.C.R. 892 Cuddy Chicks Limited v. Ontario (Labour Relations Board),  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,  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,  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,  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  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.,  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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