2. The British Columbia Civil Liberties Association ("BCCLA") specifically seeks leave to make written and oral submission on the proper interpretation and constitutional status of sections 13 and 54 of the Canadian Human Rights Act (the "Act"). As well, the BCCLA seeks standing to introduce evidence and to receive and reply to all other parties' arguments and evidence regarding the proper interpretation of sections 13 and 54 and seeks standing to cross-examine witnesses. At present, the BCCLA does not seek standing to call witnesses.

Position of the BCCLA Regarding Section 13 of the Act

3. If the BCCLA were to receive intervenor standing in this matter, we would argue that sections 13 and 54 of the Act infringe ss. 2(b), 7 and 11 (d) of the Charter of Rights and Freedoms and that these infringements cannot be justified under s. 1 of the Charter.

Position to be Taken by the BCCLA if Granted Leave to Intervene

18. The BCCLA's submissions will present its views of the proper interpretation and constitutional status of sections 13 and 54 of the Act. The BCCLA's position is:

• Section 13 of the Act unreasonably infringes on freedom of expression as guaranteed under s. 2(b) of the Charter.

• Sections 13 and 54(1)(c) create a criminal offence without providing the respondent with the defences common to analogous criminal offences or requiring proof beyond a reasonable doubt, proof of a culpable mental state (or mens rea), or a strict application of the rules of evidence and accordingly violate the respondent's rights under ss.7 and I I(d) of the Charter of Rights and Freedoms.

• Section 13 creates an arbitrary distinction whereby an individual may be denied his/her rights under ss. 2(b) and 7 on the basis of using the internet or intranet as a medium of expression as opposed to other forms of media.

• The infringements of ss. 2(b), 7 and 11(d) are not saved by s. 1 of the Charter because the measures adopted are not rationally connected to the objective of the legislation and they fail to impair the abridged rights as minimally as possible.

20. Consequently, the BCCLA will submit that s. 13 of the Act is unconstitutional and inconsistent with the Charter in its capacity to restrict freedom of expression in a private context and s. 54(l)(c) of the Act is unconstitutional and inconsistent with the Charter in its capacity to criminalize certain communications broadcast by internet and intranet media. The BCCLA will submit that ss. 13 and 54(1)(c) of the Act should be struck on the basis that they are unconstitutional.

NEWS RELEASE

Tuesday May 19, 2008
FOR IMMEDIATE RELEASE
           

CENSORSHIP ON TRIAL: CIVIL LIBERTIES ASSOCIATION APPLIES TO INTERVENE IN IMPORTANT FREE SPEECH CASES

The B.C. Civil Liberties Association is applying for leave to intervene in two important free speech cases before the federal and British Columbia human rights tribunals. At issue in both cases is whether the expression of controversial, even hateful expressions can be censored by the state via tribunals that traditionally protect the value of equality by sanctioning discrimination. 

BCCLA President Rob Holmes: “Freedom of expression is a fundamental democratic value. Citizens of a democracy should be trusted to form their own judgments about the views expressed by others, including controversial and offensive comments. The BCCLA will seek to protect basic Charter rights so that opinions on all matters, including religion, can continue to be debated freely and without fear through all media of communication.”

Federally in Warman v. Marc Lemire and Freedomsite, the complaint focuses on [ALLEGED] anti-Semitic postings on a website run by Marc Lemire. In Elmasry and Habib v. Rogers Publishing Ltd., the complainants object to an article by Mark Steyn’s entitled “The Future Belongs to Islam” that was published in McLean’s magazine in 2006.

Both the Canadian Human Rights Act and British Columbia’s Human Rights Code have provisions that prohibit the publication of material that is likely to promote hatred or contempt against an individual or group 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 group.

The BCCLA is Canada’s leading defender of free expression. The Association takes the position that citizens have a responsibility to condemn hateful speech and that the remedy to obnoxious, hurtful speech is to promote counter expression rather than permit state censorship. 

BCCLA Vice-President Jason Gratl and Micah Rankin of Hunter Litigation Chambers represent the Association.

Robert Holmes, President
604-681-1310

Grace Pastine, Litigation Director
604-630-9751

www.bccla.org

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