Civil rights group concerned about future of freedom of expression

The B.C. Civil Liberties Association, long a defender of free speech and human rights in British Columbia, fears for the future of freedom of expression as a result of today’s decision of the B.C. Human Rights Tribunal.

The Tribunal’s decision responds to a complaint by the Canadian Jewish Congress against Doug Collins and the North Shore News about Mr. Collins’ 1994 column entitled “Hollywood Propaganda”. The BCCLA was granted intervenor status by the Tribunal only to argue that section 7(1)(b) of the B.C. Human Rights Code is unconstitutional. Section 7(1)(b) prohibits any person from publishing a statement that is likely to expose a person or group to hatred or contempt because of their race, colour, ancestry or religion.

The BCCLA had intervened in the case to argue that Canada’s Charter of Rights and Freedoms offers very broad protection to freedom of expression. According to Kay Stockholder, president of the BCCLA, “This freedom is crucial to a flourishing democratic polity. While hate speech and racial hatred are odious, legal prohibitions do not eliminate hatred. Indeed, such restrictions of free speech drive hatred underground where it festers unchallenged by evidence or rational argument.”

Stockholder fears that if the decision of the Tribunal stands, “…it would mean that a tribunal appointed by government would have the power to determine that British Columbians could not write, speak, read or hear certain ideas. The Association recognizes the power of words. But where ideas might offend, we are much better off if it is the citizenry that responds to extreme speech rather than a government censor.”

The Supreme Court of Canada has in past decisions permitted some government laws to limit freedom of expression, such as Canada v. Taylor. But BCCLA’s legal counsel Murray Mollard argued that the B.C. Human Rights Code went much farther than the limits allowed in the Taylor decision.

According to Mollard: “Section 7(1)(b) is an absolute prohibition on the content of particular ideas, much broader than the law in Taylor. We argued that the government therefore has a heightened onus in proving that the law is reasonably and demonstrably justified in a free and democratic society. In our view, the evidence in the hearing indicated that the government did not consider any alternatives to such a broad prohibition. We further argued that the harmful effects of this law, such as the erosion of democracy, chilling effect on all speech and greater reliance on government to think for us, would clearly outweigh the speculative beneficial impact of the law. We felt that these factors lead to the conclusion that the law is unconstitutional.”

In a lengthy decision, the Tribunal disagreed. In particular, the Tribunal found that the government has less of a burden to justify its restrictions given that this was only a “partial ban” on speech. It found that there were no other alternatives to s. 7(1)(b) that would be less restrictive on free speech yet equally effective at combating hate. Central to its decision was the Tribunal’s interpretation of s. 7(1)(b).

According to the Tribunal, s. 7(1)(b) requires a two-stage analysis. First, does the communication express hatred or contempt based on a reasonable person’s analysis? Second, is the likely effect of the communication to make it more acceptable for others to manifest hatred or contempt, again based on a reasonable person’s analysis and the context of the communication?

The Association is concerned that it will be difficult for the average citizen to predict with any certainty whether expressions will run afoul of the law. Second, given the Tribunal’s comments on the influence of the media, newspapers and other media will be especially vulnerable to the chilling effect of self-censorship. The BCCLA hopes to pursue further opportunities to present its views before the courts if the respondents appeal the Tribunal’s decision.