More to rights hearing than meets the press
“The greatest dangers to liberty lurk in insidious encroachment of men of zeal, well-meaning, but without understanding.”

Justice Louis Brandeis of the U.S. Supreme Court

Vancouver Courier
January 4, 1998

This month, as we know, is named for Janus, the Roman god of doorways and beginnings. His familiar head with two bearded faces back to back look in opposite directions, as if to the past and to the future. In that spirit, I’d like to take one last look at 1997. Here, then, is my nominee for the year’s worst reported news story—the human rights suit the Canadian Jewish Congress filed against the North Shore News and its now-retired columnist Doug Collins.

Many column inches and taxpayer dollars were wasted on what was essentially a petty squabble between two equally guilty parties: Collins, for writing a lame column condemning a film he didn’t see; and the CJC for building a Mount Zion out of a molehill. Vaughn Palmer of the Vancouver Sun said it best: but for the CJC, Collins’s offending “Swindler’s List” column would have quickly become birdcage liner and forgotten.

In addition to this sideshow, however, was the B.C. Press Council’s submission to the tribunal. The Council challenged the constitutionality of the free speech restrictions of Section 7(1) of the B.C. Human Rights Code, yet its submission received little or no coverage. This is peculiar since the media love to trumpet free speech. (Remember the stink they kicked up over limitations on election poll reporting?)

\Yet, the Press Council’s submission was hardly mentioned, largely because of Collins. Other members of the media treat him like Typhoid Mary, and I suspect, that any support for the Press Council might have been seen as a defence of Collins and his notoriously incendiary views. Thus tribunal spokeswoman Nitya Iyer was praised when she upheld the constitutionality of Section 7 (1) yet found against the CJC. Vancouver Sun editorialists and commentators hailed it as “shrewd common sense,” “liberal-minded” and a balance between freedom of speech and censorship.

The fact is, it was no such thing. The Press Council submission showed Section 7 (1) to be demonstrably unjustifiable, an assault on freedom of the press. There isn’t space to give the full Press Council brief, but certain points need to be elaborated, lest the public be misled as to the virtue of Section 7 (1) and the fairness of Iyer’s decision.

First, the Press Council submission was utterly unrelated to the specifics of the Collins–CJC case, and so could have been supported without implying any support for Collins. The submission was a principled critique of Section 7 (1) that showed it to be both unnecessary and unconstitutional, to wit:

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...
Fact: Sections 318 to 320 of the Criminal Code of Canada already prescribe penalties for promulgating hate literature and using hate propaganda to incite people to violence. Thus, Section 7 (1) is at best redundant.

First, Section 2 (b) of the Charter states: “Everyone has... freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” Nowhere in Section 7 (1) is freedom of opinion or press defended. In fact, it was designed to infringe this very right—for our good, of course. 

Second, Section 52 (1) of the Charter states: “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.”

Since Section 7 (1) violates Charter 2 (b), Charter 52 (1) comes into effect; ipso facto, Section 7 (1) is unconstitutional.

Section 7 (1) is also inconsistent with other provinces’ human rights legislation. None of the others interferes with newspapers or includes a group defamation category. All (except Manitoba’s) expressly defend the free expression of opinion. The Press Council submission even shows that the censorious provisions of Section 7 (1) are nearly identical to those in South Africa’s apartheid-era Publications Act (1974).

As to the rights of the accused under Section 7 (1), they bear no resemblance to any standard of democratic justice that we know; in fact, they contradict civil and criminal law. For example, Section 7 (1) does not recognize truth as a defence, even though Section 311 of the Criminal Code expressly asserts truth as a defence against a charge of libel.

The Criminal Code defends fair comment on true facts and artistic or scientific merit (s. 310); Section 7 (1) does not.

Section 7 (1) permits the government to lay a charge of group defamation even when no member of the affected group lodges a complaint. For the accused, innocent intent is not a defence; there is no right to reclaim legal costs in the case of victory; and there is no appeal from a tribunal judgment.

Freedom of the press should not depend on the whims of any bureaucrat. It’s easy to spot threats to freedoms when they come from enemies; when threats come from the supposed defenders of freedom, they’re much harder to recognize.