Human Rights Code Hate Provision Upheld
Canadian Jewish Congress v. North Shore Free Press Ltd. (No. 7) (1997), 30 C.H.R.R. D/5 (B.C.H.R.T.)
This is a decision by a B.C. Human Rights Tribunal on a complaint filed by the Canadian Jewish Congress against Doug Collins and North Shore News about an opinion column entitled "Swindler's List: Hollywood Propaganda" published March 9 1994 in the North Shore News. The essence of the complaint is that the article was likely to expose Jewish persons to hatred or contempt on the basis of their race, religion or ancestry contrary to s. 7(1)(b) of the 1996 Human Rights Code.
Doug Collins and North Shore News dispute the complaint on the merits. They also challenge the constitutional validity of the legislation, both on the ground that it violates the Charter and on the basis that it exceeds the legislative competence of the province.
Four organizations were granted intervener status: the B.C. Press Council, the B.C. Human Rights Coalition, the Chinese Benevolent Association of Vancouver, and the B.C. Civil Liberties Association. The Attorney General of B.C. and the Deputy Chief Commissioner of the B.C. Human Rights Commission also intervened to make arguments regarding the constitutional validity of the Code.
The Tribunal considers these issues: (1) whether s. 7(1)(b) of the Code is legislation that exceeds the powers of the province; (2) what is the nature of the limit on the constitutional right to freedom of expression that is contained in 7(1)(b) of the Code; (3) whether s. 7(1)(b) constitutes a reasonable limit on freedom of expression within the meaning of s. 1 of the Charter; and (4) whether the Collins column of March 9, 1994 contravenes s. 7(1)(b).
The respondents challenge the validity of s. 7(1)(b) on the grounds that it is ultra vires the Province of British Columbia because it trenches on the authority of the federal government to enact criminal law under s. 91(27) of the Constitution Act, 1867, and because it intrudes into federal jurisdiction over "speech."
The Tribunal rejects both arguments. It finds that the province has jurisdiction over "civil rights," and this includes the authority to legislate against discriminatory publications. Section 7(1)(b) does not trench on the federal criminal law power because there is no explicit penalty for contravening this, or any other, section of the Code. The remedies that may be ordered under the Code are intended to compensate the victims of discrimination, and prevent similar acts from occurring again in the future, rather than to penalize the discriminator. Section 7(1)(b) of the Code is not a criminal law.
The respondents also assert that there is exclusive federal jurisdiction over speech. However, the Tribunal finds that there is a divided jurisdiction over speech, and that as long as s. 7(1)(b) does not penalize a respondent by way of a fine or imprisonment, it does not intrude on federal jurisdiction.
The implied bill of rights doctrine, the Tribunal finds, asserts that certain very fundamental rights, freedom of political speech in particular, cannot be abridged by either federal or provincial governments. There is authority in Canadian case law to the effect that a government cannot legislate to curtail political speech that is essential to the working of democracy. Hate speech has been categorized as political expression for the purposes of Charter analysis, but hate speech has also been described as "inimical" to the workings of democracy.
The Tribunal concludes that to the extent that s. 7(1)(b) prohibits "political speech" by restricting expression that is likely to expose a person or group to hatred or contempt, it does not exceed provincial legislative jurisdiction either by trenching on federal jurisdiction under s. 91(27) of the Constitution Act, 1867 or under the implied bill of rights doctrine.
The Tribunal finds that s. 7(1)(b) of the Code infringes s. 2(b) of the Charter which guarantees "freedom of expression,.. including freedom of the press and other media of communication." However, it also finds that the expression that is restricted by s. 7(1)(b) is not closely tied to the core values underlying s. 2(b). Section 2(b) of the Charter is intended to further the "search for political, artistic and scientific truth, the protection of individual autonomy and self-development, and the promotion of public participation in the democratic process." In decisions in Ross v. New Brunswick School Dist. No. 15and R. v. Keegstra the Supreme Court of Canada found that "hate propaganda" strays from the core values underlying freedom of expression and for this reason restrictions on freedom of expression to constrain hate speech are easier to justify.
Considering the meaning of s. 7(1)(b) of the Code, and relying on the Supreme Court of Canada decision in Canada (Human Rights Comm.) v. Taylor, the Tribunal finds that hatred and contempt must be narrowly defined. "Hatred" refers to "extreme" ill-will and an emotion which allows for "no redeeming qualities" in the person to whom it is directed. "Contempt" is similarly extreme, though it conveys the notion that the speaker looks down on the person or group spoken about. Hatred and contempt refer to unusually strong and deeply-felt emotions of detestation, calumny and vilification.
Looking at the words "likely to expose" the Tribunal finds that human rights legislation is concerned with preventing discriminatory actions against vulnerable groups. Consequently the Tribunal finds that the s.7(1)(b) inquiry should be into whether the impugned communication is likely to increase the risk of manifestation of hateful or contemptuous behaviour. Does the message make it more acceptable and therefore more likely for recipients to express or act upon their feelings of hatred or contempt for members of the target group?
The Tribunal concludes that the assessment of an expression under s. 7(1)(b) requires the application of a two part test:
Does the communication itself express hatred or contempt of a person or group on the basis of one or more of the listed grounds, and would a reasonable person understand this message as expressing hatred or contempt?
Assessed in its context, is the likely effect of the communication to make it more acceptable for others to manifest hatred or contempt against the person or group, and would a reasonable person consider it likely to increase the risk of exposure?
Section 7(1)(b) would be too chilling of fair commentary on sensitive and controversial issues if a message that was not hateful or contemptuous in itself could be caught by this prohibition.
The Tribunal then considers whether s. 7(1)(b), interpreted in this way, is a reasonable limit on freedom of expression under s. 1 of the Charter. Applying the s. 1 tests set out by the Supreme Court of Canada, the Tribunal finds that the legislative objective, which is to prevent and reduce the well-recognized harms associated with the public manifestation of hateful or contemptuous expression against vulnerable persons or groups, is pressing and substantial. Secondly, the Tribunal finds that there is a rational connection between the objective and the legislative provision. Section 7(1)(b) does not irrationally exceed its legislative objective by being overbroad. It only catches messages that themselves express hatred or contempt, and it requires an objective judgment about the likely effect of the message. Finally, the Tribunal finds that s. 7(1)(b) minimally impairs the right to freedom of expression guaranteed by s. 2(b) of the Charter. No less restrictive alternative was identified that would infringe freedom of expression less and still effectively attain the legislative objective. Finally, considering the likely impact of s. 7(1)(b) the Tribunal concludes that its deleterious impact on freedom of expression is outweighed by its salutary effects. The Tribunal finds that s. 7(1)(b) is constitutionally valid.
Turning to the merits of the complaint against Doug Collins and North Shore News, the Tribunal finds that the column written by Doug Collins and published in the North Shore News on March 9, 1994, is anti-Semitic. It says that films like Schindler's List are hate propaganda by Jews against Germans; that the generally accepted figure of six million Jewish victims of the Holocaust is grossly inflated and the Holocaust is no different than other wartime mass killings; that the popularity of the film and its likely success in the Academy Awards is a product of Jewish control of Hollywood. The column presents Jews in a negative light, as powerful propagandists and profiteers, and it grossly minimizes the extent of their victimization in the Holocaust. The Tribunal finds that a reasonable person would understand the column to be anti-Semitic, offensive and hurtful to Jewish people.
However, the Tribunal concludes that the content of the column is not so extreme that, taken on its own, it is hateful or contemptuous in the sense contemplated by s. 7(1)(b). This is a case where attention must be paid to tone and to the vulnerability of the group in order to determine whether, taken together with the content, the overall meaning is hateful or contemptuous. As to tone, the Tribunal does not find in it the quality of emotion signified by the phrase "hatred or contempt." The tone of the article is nasty, provocative and insulting. It is mean-spirited and expresses a smug self-satisfaction in the author's apparent success in freeing himself from the grip of the "propaganda" by which the rest of society is still duped. However, considering the column as a whole it does not have the degree of calumny, detestation or vilification signified by "hatred or contempt" as the phrase is used in s. 7(1)(b).
The Tribunal's conclusion is not altered by finding that Jewish people are extremely vulnerable to persecution and discrimination, and are frequently the targets of hatred and contempt. The vulnerability of the group is insufficient alone, however, to render the column hateful and contemptuous in the sense required by the Code. Therefore, the Tribunal finds that the complaint fails the first part of the two-part test and must fail.
Section 7(1)(b) is constitutionally valid. The complaint is dismissed on its merits.
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