Opening statement by Murray Mollard, BCCLA counsel, May 12, 1997

As Canada’s oldest private, non-profit civil liberties organization, fighting for citizens’ democratic freedoms since 1962, the BCCLA sought leave to intervene in this matter because of our long-standing interest in issues of free expression and equality/anti-discrimination. Long before the Province established human rights legislation, our Association assisted individuals with complaints about discrimination and also advocated for creation of human rights law to prohibit discrimination. We continue to work on issues of discrimination not covered by current human rights legislation.

Our Association intervenes only to argue on the issue of the constitutionality of section 7(1)(b) of theHuman Rights Code. We will not argue whether the statement at issue violates this section.

We believe that section 7(1)(b) of the Human Rights Code represents an unacceptable government limit on which ideas citizens of British Columbian may express or have access to. However well intentioned, this form of censorship is not justified in principle or in law.

Freedom of expression is a fundamental right protected by the Charter of Rights and Freedoms

Freedom of expression is the most fundamental of rights in a democracy. Canada’s democracy is premised on the idea that citizens are self-governing people. We elect governments to act as our agent, but only with our consent. Ultimate authority rests with the people.

This vision of democracy requires that citizens have almost unfettered ability to express any idea and also that citizens have access to any idea they choose. It presumes that citizens are responsible for considering, debating, and choosing which ideas are worthy of forming the foundation for our laws, public policies and public institutions. It also presumes that we have the capacity as thinking, deliberating beings to rise to this challenge, adopting good policies and discarding bad ideas.

We recognize that freedom of speech is not absolute. The state may legitimately regulate speech in terms of time, place and manner in order to protect other fundamental values and interests. For example, the Access to Abortion Services Act creates narrowly defined areas (“bubble zones”) around abortion clinics and doctors’ homes within which one cannot protest against abortion. This limitation on freedom of speech is justified in order to protect the privacy interests of both caregivers and women seeking abortion. This law has the support of the BCCLA and, we believe, the majority of British Columbians.

In contrast, section 7(1)(b) of the Human Rights Code is not a regulation of speech. It is absolute censorship based on the contents of ideas.

Expressions about race, religion and sexuality, no matter how controversial or even deeply offensive and hurtful, deserve protection just because they are part of public discourse. Though repugnant to many if not most of us, these ideas are part of the democratic forum, part of the landscape of ideas. They challenge us to choose what type of society we live in, what our laws will be, what our public policies and institutions will be.

As part of the democratic forum, these ideas must be tolerated even if they are deeply offensive to many or most citizens.

We remind the Tribunal that democracy is not perfect, nor is the public consideration of controversial ideas necessarily pleasant and civil.

Tolerating even offensive ideas does not give these ideas credibility. On the contrary, citizens have a positive duty to reject those ideas that they think are wrong or harmful, and to do so forcefully and publicly. True democracy and equality are achieved only by citizens’ continuous reaffirmation of democratic values.

Legal arguments

The BCCLA will argue that:

1. Section 7(1)(b) of the Code infringes Canadians’ right to freedom of expression as expressed in section 2(b) of the Canadian Charter of Rights and Freedoms, and that it is not demonstrably justifiable in a free and democratic society and so cannot be saved by section 1 of the Charter.
2. The case of Canada v. Taylor is not determinative of the constitutionality of section 2(1)(b) of the Human Rights Code. Section 7(1)(b) casts a vastly wider net than the law at issue in Taylor. (In Taylor, the Supreme Court of Canada upheld a Canadian Human Rights Tribunal decision that telephonic hate messages violated the Canadian Human Rights Act.) Further, the actual context of this case is significantly different than Taylor’s, and jurisprudence from the Supreme Court of Canada subsequent to Taylor leaves it open to this tribunal to distinguish this case from the law as set out in Taylor.
3. Government bears a very significant burden in justifying a law that infringes a fundamental liberty of self-governing citizens.

In sum, the BCCLA will argue that no law that restricts expressions that are part of public discourse solely on the basis that their content is judged to be reprehensible can be saved by section 1 of theCharter, precisely because such a law would make our society less “free and democratic”.