Collins v. Abrams, 2002 BCTC 1774,

In the Supreme Court of British Columbia

NATURE OF THE PROCEEDINGS:

[1] The Attorney General of British Columbia has applied for an order dismissing the petitioner’s application for judicial review of an Order of the British Columbia Human Rights Tribunal dated November 30, 2001, on the grounds that the matter has become moot. The Order was made following a complaint against the petitioner under s. 7 of the Human Rights Code, R.S.B.C. 1996, c. 210 (“the Code”), which states:

7 (1) A person must not 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 persons, or
(b) is likely to expose a person or a group or class of persons to hatred or contempt
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 that group or class of persons.
(2) Subsection (1) does not apply to a private communication or to a communication intended to be private.

FACTS:

[2] The essential facts in this case may be best understood if set forth in a chronology:

May, 1994: Harry Abrams filed complaints with the B.C. Council of Human Rights alleging that the North Shore News and Doug Collins had published articles that discriminated against Jewish persons and that were likely to expose those persons to hatred or contempt on the basis of their race, religion and ancestry. The four articles were entitled: “News flash! Daily press discovering free speech”; “Hollywood propaganda”; “Pondering far better than pandering folks”; and “Some value freedom of the press, some don’t.”

March 13, 1997: Mr. Abrams applied to have his complaint heard at the same time as another complaint against Mr. Collins and the North Shore News, brought by the Canadian Jewish Congress with respect to one of the four columns (“Hollywood propaganda”). His application was denied.
November 4, 1997: Tribunal Member Nitya Iyer gave her decision regarding the Canadian Jewish Congress complaint: Canadian Jewish Congress v. North Shore Free Press Ltd. (No. 7) (1997), 1997 BCHRT 35 (CanLII), 30 C.H.R.R. D/5 (“Canadian Jewish Congress”). She summarized her conclusions at paras. 260-62 thus:

In summary, s. 7(1)(b) of the Code is validly enacted provincial legislation. It does not intrude on federal jurisdiction over criminal law, nor does it exceed provincial jurisdiction by regulating political speech. The provision does infringe the guarantee of freedom of expression in s. 2(b) of the Charter, but is saved under s. 1 of the Charter as being demonstrably justified as a reasonable limit in a free and democratic society. Thus, the constitutional challenge to the legislation fails.

I have interpreted s. 7(1)(b), in light of the Charter, to require a two part analysis: First, does the communication itself express hatred or contempt of a person or group on the basis of one or more of the listed grounds? Would a reasonable person understand this message as expressing hatred or contempt in the context of the expression? Second, 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 concerned? Would a reasonable person consider it likely to increase the risk of exposure of target group members to hatred or contempt?

In the present case, although the publication in issue is likely to make it more acceptable for others to express hatred or contempt against Jewish people because of their race, religion or ancestry, I find that it does not itself express hatred or contempt. Therefore, the complaint is not justified and, pursuant to s. 37(1) of the Code, the complaints against the Respondent Doug Collins and the Respondent North Shore News are each dismissed.

No party sought judicial review of the Canadian Jewish Congress decision.
January 14, 1998: Doug Collins served a Notice of Constitutional Question in the Abrams complaint, alleging that s. 7(1) of the Code infringes s. 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11.
April 2, 1998: Tribunal Member Patch allowed an application in the Abrams complaint to sever the constitutional validity issues, to be heard after the merits of the complaint.

July, 1998: Tribunal Member Patch presided over the hearing into the merits of the Abrams complaint. Mr. Collins and the North Shore News did not participate in that portion of the hearing except to introduce written submissions concerning the interpretation of s. 7 of the Code. The complainant Mr. Abrams, the Deputy Chief Commissioner of the B.C. Human Rights Commission, the Attorney General and an intervener, League for Human Rights of B’Nai Brith Canada, were represented at the hearing.

February 2, 1999: The Tribunal rendered Reasons for Decision finding that the four columns written by Mr. Collins and published by the North Shore News were likely to expose Jewish persons to hatred or contempt because of their race, religion or ancestry contrary to s. 7(1)(b) of the Code (Abrams v. North Shore News (No. 3) (1999), 1999 CanLII 35208 (BC HRT), 33 C.H.R.R. D/435). Mr. Patch concluded that the first question he should ask is whether a reasonable person, informed about the context, would understand the message as expressing hatred or contempt. He explained that, in his view, the “reasonable person” is not a purely abstract entity, but someone of this place and time, with knowledge of the past and present. Referring to the definition of “hatred” adopted by the Supreme Court of Canada in Canada (Human Rights Commission) v. Taylor, 1990 CanLII 26 (SCC), [1990] 3 S.C.R. 892 (“Taylor”), Tribunal Member Patch stated (at para. 72) that:

Considering the content and tone of the columns and the vulnerability of the target group, I am satisfied that a reasonable person, informed of the context of the messages, would understand the messages within them as expressing hatred and contempt, that is, that the columns collectively convey “unusually strong and deep-felt emotions of detestation, calumny and vilification.”
Turning to a second question, whether the likely effect of the communication makes it more acceptable for others to manifest hatred or contempt against the person or group concerned, Mr. Patch said that factors to be considered at that stage include the credibility likely to be accorded the expression and how it is presented, as well as the vulnerability of the target group and the degree to which the expression reinforces existing stereotypes. He referred to expert evidence suggesting that the impact of columns published in a community newspaper may be significant in forming public attitudes. He stated (at para. 83):
The Jewish people remain a vulnerable group. The messages contained in the articles repeatedly reinforce existing anti-Semitic stereotypes and theories. They were published in a widely distributed community newspaper. The context in which the columns were published gives a gloss of respectability to the views they express. In my opinion, the evidence establishes that a reasonable person would conclude that these columns, considered in their historical and social context, are likely to make it more acceptable for others to manifest hatred or contempt against Jewish people.

Providing the context for his final conclusion, the Tribunal Member stated at paras. 84–86:

Individually, and taken out of context, each of the four columns at issue might not convey messages that meet the high threshold that is necessary to be considered hatred or contempt within the meaning of s. 7(1)(b) of the Code. However, collectively they do. They repeatedly reinforce some of the most virulent forms of anti-Semitism. They convey the message that Jews, individually and collectively, are selfish, greedy and manipulative; that they have conspired to control government institutions and the media; and that they use that control to perpetuate inflated figures concerning the victimization of Jews during the Holocaust and to persecute anyone who speaks out against them.
The publication of these messages in a community newspaper that is delivered to almost every home in the community is likely to increase the risk to Jewish people of being exposed to hatred or contempt because of their race, religion or ancestry. Mr. Collins expresses hatred or contempt indirectly and subtly. He does not overtly incite hateful or contemptuous expressions. However, he reinforces negative stereotypes of the Jews that have been promulgated for centuries. Further, publication of these ideas in a credible newspaper increases the likelihood that others will manifest hateful and contemptuous views in a more directly harmful manner.
I find that the four columns, which were written by Doug Collins and published by the North Shore News, and which were the basis for this complaint, are likely to expose Jewish persons to hatred or contempt because of their race, religion or ancestry contrary to s. 7(1)(b) of the Code.
The terms of the Tribunal’s Order were as follows:

1. That the Respondents Doug Collins and the North Shore News cease publishing statements that are likely to expose Jewish persons to hatred and contempt and refrain from committing the same or a similar contravention;

2. That Doug Collins and the North Shore News pay $2,000 to the Complainant Harry Abrams as compensation for the injury they have caused to his dignity and self respect;

3. That the North Shore News publish in one of its next three editions the Summary that accompanies these reasons.
The Respondents are jointly and severally liable for the damages.
1999: Following the Tribunal’s Order, the North Shore News published a summary of the decision and paid the $2,000 ordered to Mr. Abrams. After that, it declined to participate further in the proceedings and took no part in the constitutional challenge to s. 7(1)(b) of the Code.

April 7, 1999: Mr. Collins commenced judicial review proceedings with respect to the decision and filed a further Notice of Constitutional Question. It alleges that:

(1) the Order of the Tribunal constitutes an unreasonable limit on the freedoms guaranteed by s. 2 of the Charter and ought to be quashed pursuant to s. 24(1) of the Charter;
(2) s. 7(1)(b) of the Code constitutes an unreasonable limit on the freedoms guaranteed by s. 2(b) of the Charter and ought to be declared of no force and effect pursuant to s. 24(1) of the Charter and s. 52 of the Constitution Act, 1982;
(3) s. 7(1)(b) ought to be declared ultra vires the provincial legislature because it does not relate to a matter coming within the classes of subjects enumerated in s. 92 of the Constitution Act, 1867;
(4) sections 31, 32, 34, 37 and 39 of the Code create a scheme which is unconstitutional in the light of s. 2(b) of the Charter; and
(5) the Tribunal established under the Code is neither independent nor impartial, contrary to s. 11(d) of the Charter, and the proceedings accordingly ought to be declared void and the legislative provisions creating the scheme and Tribunal ought to be declared of no force and effect.

December 2, 1999: Madam Justice Quijano remitted to the Tribunal the constitutional validity issues and the questions of institutional bias and lack of independence in the Tribunal: Collins v. Abrams (1999), 1999 CanLII 3021 (BC SC), 19 Admin. L.R. (3d) 269 (B.C.S.C.).

February 14, 2001: The Court of Appeal upheld the Order of Madam Justice Quijano: Collins v. Abrams (2001), 2001 BCCA 22 (CanLII), 85 B.C.L.R. (3d) 228 (C.A.).

August 9, 2001: Leave to appeal to the Supreme Court of Canada was denied: Collins v. Abrams, [2001] S.C.C.A. No. 109.

June 15, 2001: Tribunal Member Patch denied an application by the Attorney General that the Tribunal adopt into the record of the Abrams complaint the record from Canadian Jewish Congress and determine that s. 7(1)(b) of the Code is constitutionally valid based on the decision in that case. The Tribunal then received written submissions on the constitutional issues.

September 29, 2001: Doug Collins passed away. Subsequently, the Attorney General, the Deputy Chief Commissioner, the complainant and the intervener all joined in an application for an order that the matter be declared moot.

November 30, 2001: Tribunal Member Patch issued Reasons for Decision in which he found that the matter was not moot, and stated his conclusion regarding the alleged constitutional infringements: Abrams v. Collins (No. 5), 2001 BCHRT 43. He referred to the guidelines in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 (“Borowski”) and found that there could be a practical effect flowing from a decision on the constitutionality of the legislation because if the legislation was unconstitutional then the Order would have no force or effect and the North Shore News might be entitled to the return of the $2,000 it had paid to Mr. Abrams. Further, he stated, a decision that the legislation was unconstitutional could, in effect, clear the names of the respondents. He found that Mr. Collins had failed to establish that s. 7(1)(b) created an unconstitutional scheme, that it lacked independence or impartiality, or that it was ultra vires the province (Mr. Collins had not provided particulars, evidence or argument on those allegations). He found, as had the Tribunal in Canadian Jewish Congress, that s. 7(1)(b) infringes the right to freedom of expression guaranteed in s. 2(b) of the Charter but that it constitutes a reasonable limit demonstrably justified in a free and democratic society under s. 1 of the Charter. Finally, he found that the order requiring the North Shore News to publish a summary of the decision did not affect Mr. Collins’s right to free expression.

September 6, 2002: This court heard the Attorney General’s application to dismiss the judicial review proceedings on the grounds that the matter has become moot. The Attorney General, the petitioner, and the intervener were represented by counsel; other parties to the proceedings did not participate. An affidavit of Betty Collins was filed, in which she deposed that she is the executrix and sole beneficiary of the estate of Doug Collins, that she considers that the Tribunal Order affects her rights to communicate freely the exact contents of the material that was the subject-matter of the complaint, that she wishes to continue to publish the writings and creative works of her late husband as and when she chooses and that she wishes to pursue the petition to challenge the constitutional validity of s. 7 of the Code.

October 2 and 15, 2002: Further written submissions from Ms. Mrozinski and Mr. Christie regarding copyright ownership in Mr. Collins’s work after his decease were received by this court. Mr. Christie tendered in evidence an affidavit of Peter Speck, the former publisher of the North Shore News, deposing that the arrangement with Mr. Collins was a “gentleman’s agreement” whereby Mr. Collins gave the North Shore News the right to publish his articles first and, if he chose, to publish elsewhere with (as a matter of courtesy) acknowledgement that the North Shore News had published first. Mr. Speck deposed that the North Shore News never received copyright to Mr. Collins’s work and that to his knowledge Mr. Collins never gave up copyright to his work (including the columns at issue in the human rights complaint) to anyone else, but retained it himself.