Human Rights

Doug Collins


Harry Abrams vs Doug Collins

BC Human Rights Tribunal


R.S.B.C. 1996, c.210 (as amended)


of a complaint before

the British Columbia Human Rights Tribunal

B E T W E E N:

Harry Abrams


A N D:

North Shore Free Press Ltd.

doing business as "North Shore News"


Doug Collins


A N D:

Deputy Chief Commissioner, B.C. Human Rights Commission

A N D:

Attorney General of British Columbia

A N D:

League for Human Rights of B'Nai Brith Canada



Tribunal Member:

Tom W. Patch

Counsel for the Complainant:

Thomas W. Bulmer

Counsel for the Respondent:

David F. Sutherland

Counsel for the Deputy Chief Commissioner:

Angela Westmacott and Deirdre A. Rice

Counsel for the Attorney General:

Lisa J. Mrozinski

Counsel for B'Nai Brith Canada:

Marvin Kurz

Place and Date of Hearing:

Victoria, British Columbia

July 20, 21, 22 and 24, 1998


[1] Harry Abrams, the Complainant, is an active member of the Jewish community in Victoria. In the winter of 1993-1994, he began reading a new newspaper, The Daily Victorian, which was delivered free to his home and office. The newspaper carried columns by Doug Collins. Mr. Abrams became concerned about these columns which contained, in his opinion, race-baiting themes including content that vilified Jews (among others). It appeared to him that this content was present in nearly all of Mr. Collins' columns. Mr. Abrams learned that the columns he was reading were syndicated versions of columns that appeared on a regular basis in the North Shore News newspaper, which is distributed in the communities across from Vancouver on the North Shore of Burrard Inlet.

[2] On May 27, 1994, Mr. Abrams filed human rights complaints alleging that the North Shore Free Press Ltd., doing business as "North Shore News" (the "North Shore News"), Robert H. Howse, doing business as "The Daily Victorian", and Doug Collins published or caused to be published articles that discriminate against Jewish persons and are likely to expose those persons to hatred or contempt on the basis of their race, religion and ancestry, contrary to s. 2 of the Human Rights Act, S.B.C. 1984, c. 22, now s. 7 of the Human Rights Code, R.S.B.C. 1996, c. 210 (the "Code"). In particular, he alleged "that the continual barrage of articles written by Mr. Doug Collins promoting his views on Holocaust revisionism and Jewish conspiracies, have a cumulative affect [sic] of promoting hatred and contempt towards Jewish people" (Exhibits 1 and 2).

[3] The Particulars of Allegation refer to four columns in support of the complaints: (a) "News flash! Daily press discovering free speech", published January 12, 1994 in the North Shore News (Appendix 1); (b) "Hollywood propaganda", published in the North Shore News on March 9, 1994 (Appendix 2); (c) "Pondering far better than pandering folks", published in the North Shore News on March 23, 1994 (Appendix 3); and (d) "Some value freedom of the press, some don't", published in the North Shore News on June 26, 1994 (Appendix 4). Doug Collins wrote all of these columns.

[4] These complaints were initially referred to hearing by the B.C. Council of Human Rights on August 19, 1996. On January 1, 1997, the Council of Human Rights was replaced by the B.C. Human Rights Commission and the B.C. Human Rights Tribunal (the "Tribunal"). Under s. 50(7) of the Code, this matter is deemed to have been referred to the Tribunal for hearing.

[5] The Complainant applied to have these complaints and a complaint which he had filed on behalf of Iranian, Japanese, Chinese and Sikh persons heard together with a complaint made by the Canadian Jewish Congress (the "CJC") against Doug Collins and the North Shore News. The CJC, Mr. Collins and the North Shore News opposed the application. On March 13, 1997, I decided that the complaints should not be heard together: Canadian Jewish Congress v. North Shore Free Press Ltd. (No. 3) (1997), 30 C.H.R.R. D/3. The CJC complaint was subsequently heard and decided by the Tribunal: Canadian Jewish Congress v. North Shore Free Press Ltd. (No. 7) (1997), 30 C.H.R.R. D/5 (the "CJC case").

[6] On January 14, 1998, the Respondents served a Notice of Constitutional Question in this matter alleging that s. 7(1) of the Code infringes s. 2(b) of the Canadian Charter of Rights and Freedoms (the "Charter") and is not saved by s. 1 of the Charter or, alternatively, that s. 7(1) of the Code is not a "limit prescribed by law" for the purposes of s. 1 of the Charter. As a result of that Notice, the Attorney General of British Columbia (the "AG") became involved.

[7] On January 19, 1998, the Deputy Chief Commissioner of the B.C. Human Rights Commission (the "DCC") filed a Notice of

Intention to Participate in this hearing as a party pursuant to s. 36 of the Code.

[8] The Respondents applied to have those portions of the complaints dealing with constitutional issues, including their challenge to the constitutional validity of s. 7 of the Code, severed from and heard after the merits of the complaint. I allowed the application on April 2, 1998 (see Appendix 5).

[9] These complaints were scheduled to be heard with a complaint made by Mr. Abrams against the North Shore News and Doug Collins on behalf Iranian, Japanese, Chinese and Sikh persons. The Complainant subsequently withdrew that complaint and the Tribunal issued a discontinuance order on May 14, 1998.

[10] The Daily Victorian is no longer in business. Following notification by the Complainant that he was withdrawing his complaint against Robert Howse doing business as The Daily Victorian, the Tribunal issued a discontinuance order on May 22, 1998.

[11] On July 16, 1998, I granted the League for Human Rights of B'Nai Brith Canada limited intervenor status (see Appendix 6).

[12] The hearing into the merits of the complaint commenced on July 20, 1998, with the hearing on the constitutional issues to proceed at a later date, if necessary. At the outset of the hearing, prior to any opening statements, the Respondents informed me that they would not be participating in this portion of the hearing except to introduce written submissions concerning the interpretation of s. 7 of the Code. After providing me with those written submissions, they left the hearing. Although they reserved the right to return to the hearing, they did not do so. As a result of their decision to be absent, the Respondents did not give any opening statements, did not examine or cross-examine witnesses, did not provide any evidence in response to the complaint and, except for the written submissions related to interpretation of the Code, did not present any closing argument. They presented no defence to the complaint. I understand that it is their intention to participate in the second part of the hearing which will deal with their constitutional challenge to the Code.

[13] Section 7 of the Code states as follows:

• 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 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 group of persons.

• (2) Subsection (1) does not apply to a private communication or to a communication intended to be private.

At the hearing, the Complainant withdrew those portions of the complaint based on s. 7(1)(a) of the Code.


[14] As a result of these preliminary matters, the scope of this decision is relatively narrow. The issues that I must determine at this stage are:

• 1) What is the proper interpretation of s. 7(1)(b) of the Code?

• 2) Did the Respondents publish or cause to be published statements that are likely to expose Jewish persons to hatred or contempt contrary to s. (7)(1)(b) of the Code?

• 3) If the Respondents published statements that contravene s. 7(1)(b) of the Code, what remedy is appropriate?


What is the proper interpretation of s. 7(1)(b) of the Code

[15] The interpretation of s. 7(1)(b) of the Code was considered in the CJC case. Tribunal Member Iyer determined that the phrase "hatred or contempt" should be accorded the same meaning as that given in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892. In Taylor, the Court held at 928:

The reference to "hatred" ... speaks of "extreme" ill-will and an emotion which allows for "no redeeming qualities" in the person at whom it is directed. "Contempt" appears to be viewed as similarly extreme, though is felt by the Tribunal to describe more appropriately circumstances where the object of one's feelings is looked down upon.... [Hatred and contempt thus refer to] unusually strong and deep-felt emotions of detestation, calumny and vilification....

[16] Tribunal Member Iyer then considered the meaning of "likely to expose". After reviewing decisions in other jurisdictions, she concluded (at D/27-D/28, para. 128):

The s. 7(1)(b) inquiry is therefore not into whether the communication in issue is likely to persuade a recipient to feel hatred or contempt, but about whether the communication is likely to increase the risk of manifestation of hateful or contemptuous behavior. In other words, can it be said that the effect of the message is to increase the likelihood that members of the target group will be exposed to hatred or contempt because the message makes it more acceptable (and so more likely) for recipients to express or act upon their feelings of hatred or contempt for members of the target group? This is an assessment which can be made on a reasonable person standard. (Emphasis in original)

[17] Tribunal Member Iyer determined (at D/28, para. 130) that the assessment of an expression under s. 7(1)(b) requires the application of a two-part test:

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?

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?

Both aspects of this test are derived from Ms. Iyer's interpretation of the meaning of the words "likely to expose ... to hatred or contempt". There is dispute about whether this test is appropriate. This is the only issue on which the Respondents made any submissions.

[18] The Respondents submit that the first part of this test limits the application of s. 7(1)(b) of the Code. The interpretation, in effect, rewrites the legislation and is, therefore, an inappropriate "reading down" of the legislation. They submit that Tribunal Member Iyer exceeded her authority and urge me to decline to follow her decision to "read down" the legislation. The Complainant, the DCC, the AG and the Intervenor all disagree with the Respondents' position; however they vary in the extent to which they support of the interpretation adopted in the CJC case.

[19] The submissions on this point, which I will discuss more fully below, raise two issues:

a) Did the Tribunal in the CJC case inappropriately read down s. 7(1)(b) of the Code?

b) If so, should I apply the two-part test described in the CJC case?

a) Did the Tribunal in the CJC case inappropriately read down s. 7(1)(b) of the Code?

[20] To determine whether the Tribunal inappropriately read down the legislation, it is necessary to understand what is meant by the concept of "reading down". Reading down may be used as a tool of statutory interpretation. Alternatively, it may be used as a constitutional remedy to remove constitutionally impermissible applications of the legislation. The focus and framework of the CJC case was on the constitutionality of s. 7(1)(b) of the Code. Ultimately, no constitutional infringement was found. Tribunal Member Iyer did not utilize "reading down" as a constitutional remedy. The focus of my analysis is not on the constitutionality of s. 7(1)(b); rather, my analysis addresses questions of statutory interpretation.

[21] The analysis of "reading down" as a tool of statutory interpretation starts with the principle that legislation is presumed to be enacted within the limits of the constitutional authority of the legislature. Professor Ruth Sullivan, in Driedger on the Construction of Statutes, 3d ed. (Toronto and Vancouver: Butterworths, 1994), at 322-23, describes the presumption of compliance with constitutional law:

It is presumed that legislation is enacted in compliance with the limits on jurisdiction imposed by constitutional law. There are two ways of understanding this presumption. The first evolved in the context of challenges to the Constitution Act, 1867 and is concerned primarily with validity. Where legislation is open to two interpretations, one of which would render the legislation invalid, the courts prefer the interpretation that avoids invalidity. This preference for the validating interpretation is a way for the courts to minimize interference with the legislative branch while at the same time discharging their duty to enforce constitutional norms.

The other way of understanding the presumption of constitutional compliance is less concerned with validity. It focuses on the substantive content of entrenched constitutional norms. This includes most obviously the values embodied in the Charter .... The idea here is that constitutional values should be relied on in interpretation because they play a central role in the legal and political culture of Canada and constitute an important part of the context in which legislation is made and applied. Given their importance, legislatures are presumed to respect them and courts, as guardians of the constitution, appropriately rely on them in interpreting legislation.

[22] The first aspect, preference for a valid interpretation, is described by Lamer J. in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R

Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect.

[23] In Driedger, the author concludes (at 324) that "[w]here a validating interpretation is plausible and appropriate in the circumstances, it is not necessary to declare legislation invalid in order to secure compliance with constitutional norms."

[24] The second aspect of the presumption of constitutional compliance is that legislation is to be interpreted to comply with constitutional values. In R. v. Zundel, [1992] 2 S.C.R. 731 at 771, McLachlin J. summarized the case law:

These authorities confirm the following basic propositions: that the common law should develop in accordance with the values of the Charter ... and that where a legislative provision, on a reasonable interpretation of its history and on the plain reading of its text, is subject to two equally persuasive interpretations, the Court should adopt that interpretation which accords with the Charter and the values to which it gives expression....

[25] The presumption of constitutional compliance is rebuttable. In Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 at 581-82, Lamer C.J. stated:

Absent a Charter challenge of its constitutionality, when Parliamentary intent is clear, courts and administrative tribunals are not empowered to do anything else but apply the law. If there is some ambiguity as to its meaning or scope, then the courts should, using the usual rules of interpretation, seek out the purpose of the legislation and if more than one reasonable interpretation consistent with the purpose is available, that which is more in conformity with the Charter should prevail.

But, I repeat, absent a Charter challenge, the Charter cannot be used as an interpretive tool to defeat the purpose of the legislation or to give the legislation an effect Parliament clearly intended it not to have.

[26] "Reading down" is an interpretive technique used by the courts and administrative tribunals to give effect to the presumption of constitutional compliance. According to Driedger (at 327): "In reading down, the potential scope of legislation is narrowed to exclude applications that are grammatically possible but constitutionally impermissible."

[27] In Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 at 1053-54, Chief Justice Lamer addressed the limitations of the application of the presumption of constitutionality in interpreting legislation:

In my view, therefore, the presumption of constitutionality can sometimes serve to rebut the presumption that the legislature intended that effect be given to the "plain meaning" of its enactments. It is important to note, however, that the process of invoking the presumption of constitutionality so as to arrive at an interpretation different from that that would ordinarily result from applying the rules of statutory construction leads to essentially the same result as would be reached by adopting ordinary interpretation, holding that the legislation is unconstitutional, and "reading it down" as a remedy under s. 52 of the Constitution Act, 1982. In light of this essential similarity between the two processes, it is clear that courts relying on the presumption of constitutionality to interpret legislation must take into account the principles I identified in Schachter [v. Canada, [1992] 2 S.C.R. 679], supra, in the context of "reading down" as a constitutional remedy. As I stated in that case (at p. 715), "respect for the role of the legislature and the purposes of the Charter are the twin guiding principles" when crafting a remedy under s. 52; in my view, they also provide guidance when interpreting legislation in light of the presumption of constitutionality. In this latter context, the former principle imposes a requirement that any alternative interpretation adopted in preference to the "plain meaning" must itself be one that is reasonably supported by the terms of the legislation. As I observed in Schachter at pp.708-9:

Where the choice of means is unequivocal, to further the objective of the legislative scheme through different means would constitute an unwarranted intrusion into the legislative domain.

Thus, merely invoking the presumption of constitutionality does not give a court complete freedom to depart from the terms of a statute employed by the legislature. Rather, the presumption is simply a factor that on some occasions tips the scales in favour of one interpretation over another construction that, in the absence of this consideration, would appear to be the most strongly supported by the rules of statutory construction. If the terms of the legislation are so unequivocal that no real alternative interpretation exists, respect for legislative intent requires that the court adopt this meaning, even if this means that the legislation will be struck down as unconstitutional.

[28] As I understand the authorities, it is proper for an administrative tribunal to interpret legislation in the manner that is most consistent with Charter values. Where there is ambiguity in the legislation, the tribunal is not required to adopt the most obvious interpretation or the one that is most consistent with ordinary principles of statutory construction if there is another reasonable interpretation that is more consistent with Charter values. A tribunal may not adopt an interpretation which is not plausible on a plain reading of the legislation or which is inconsistent with the purposes of the legislation. It is also inappropriate for a tribunal to effectively rewrite the legislation, through interpretation, to ensure compliance with the Charter.

[29] In the CJC case, Tribunal Member Iyer was clearly alive to these issues. In her reasons (at D/24, para.109), she wrote:

In approaching the task of statutory interpretation in light of the Charter, the objective is to give the statute that meaning it can reasonably bear which is most consistent with the Charter's values. That is, the statute should be read in such a way as to increase the likelihood that it would be found to be constitutionally valid if assessed against the Charter. ... However, the statutory language cannot be stretched beyond what is reasonable. Interpreting legislation in light of the Charter is confined to reading the legislation as drafted; it is not the equivalent of a "reading in" or "reading down" remedy that is available once legislation has been found to be unconstitutional.

[30] I have reached the same conclusion. The question I must answer is whether, for the purposes of the present case, Tribunal Member Iyer's interpretation of s. 7(1)(b) is one that the legislation can reasonably bear. This is not an appeal of my colleague's decision. The purpose of this analysis is not to determine whether the decision in the CJC case was correct; rather, the purpose is to determine whether the interpretation applied in the CJC case is one that, in my view, is beyond my authority to make.

[31] The portion of Ms. Iyer's interpretation that is troublesome to some parties is the first part of the two-part test. That step asks whether a reasonable person would understand the message as expressing hatred or contempt. At D/28, para. 131, Tribunal Member Iyer explained the rationale for this step:

The first requirement flows from an appreciation of the constraints on restrictions on freedom of expression imposed by the Charter. In my view, the section 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. McLachlin J.'s dissent in Taylor, supra, at 965-68 ..., identifies this as an important factor in her concern about the overbreadth of s. 13(1). I believe it can be addressed, at least in part, by confining the scope of s. 7(1)(b) to messages that are themselves hateful or contemptuous. This is also, in my view, a reasonable reading of the language of the section.

[32] The Respondents submit that this part of the test limits the application of the section, and that the Tribunal adopted this part of the test explicitly to reduce the risk that the section may infringe the Charter. They submit that there is nothing in the legislation that limits the application of the section to messages that express hatred or contempt. The Tribunal, therefore, intruded into the function of the legislature. It is not safe to assume that the legislature would have adopted the section as interpreted by the Tribunal. The Respondents submit that the Tribunal rewrote the legislation, which it cannot do.

[33] In essence, the Respondents' position is that the interpretation adopted in the CJC case, which required that the impugned messages be understood as expressing hatred or contempt, set a higher threshold than the Legislature intended. In other words, the Tribunal made the test too difficult for the Complainant to meet. I note that acceptance of the Respondents' position would lead to an interpretation of s. 7(1)(b) of the Code that is less favourable to the Respondents, with respect to the merits of the complaint, than the interpretation adopted by Ms. Iyer. However, the interpretation advanced by the Respondents would, arguably, benefit the Respondents in their challenge to the constitutionality of the provision.

[34] Although the DCC and the Intervenor, supported by the Complainant, dispute that the Tribunal inappropriately read down the legislation, they appear to question whether the interpretation adopted by the Tribunal is entirely consistent with the purposes of the legislation. In her reasons, Tribunal Member Iyer states that a communication which is not itself hateful or contemptuous but which has the effect of increasing the risk of exposing the target group to hatred or contempt does not contravene s. 7(1)(b). The DCC submits that isolating "content" from "effect"

... is difficult to reconcile with the purposes set out in s. 3(a) and (b) of the Code, namely to foster a society in which there are no impediments to full and free participation and to promote a climate of understanding and mutual respect where all are equal in dignity and rights.

[35] The Intervenor notes that human rights legislation is remedial and concerned with effects, citing Taylor, supra, at 933:

... the objective of the section requires an emphasis upon discriminatory effects .... [T]he purpose and impact of human rights codes is to prevent discriminatory effects rather than to stigmatize and punish those who discriminate.

The Intervenor submits that a two-part test that considers the content of a message without reference to its effect may be inconsistent with the effects-based purposes of the Code.

[36] The AG is unequivocal in supporting the appropriateness of the interpretation given to the section by Ms. Iyer. The AG submits that the Charter played a limited role in the derivation of the two-part test. The key to the Tribunal's interpretation lies in the Tribunal's exploration of the meaning of the phrase "likely to expose" within the context of the purpose of human rights codes. The AG submits that the Tribunal's interpretation of the words of s. 7(1)(b) is a reasonable reading which has "the salutary effect of also according with the Charter's injunction to ensure freedom of expression is restricted as little as possible."

[37] On my reading of Ms. Iyer's reasons, the Charter played an important role in the development of the two-part test. Ms. Iyer is clear that the first part of the test flows from an appreciation of the constraints on restrictions of freedom of expression imposed by the Charter.

[38] Nevertheless, I agree with the substance of the AG's position. That is, in interpreting the Code as she did, Ms. Iyer engaged in a consideration of the meaning of the words "likely to expose" in light of the purposes of this Code and human rights codes generally. At D/27-28, paras. 128-129, she wrote:

I believe that consideration of the general role and purpose of human rights statutes leads to an alternative interpretation of "likely to expose" that is both a reasonable reading of the words and which more closely accords with the Charter's injunction to ensure that freedom of expression is restricted as little as possible. Human rights codes do not act directly on people's minds, they modify people's behaviour. They are based on a recognition that deep-seated, historic prejudices against persons or groups because of identifiable personal or attributed characteristics are a sad reality within our society, and that, as far as possible, we should prevent discriminatory actions consequent upon such beliefs from being visited upon members of vulnerable groups. Consistent with this orientation, s. 7(1)(b) of the Code is not so much concerned with the existence of hatred or contempt towards a vulnerable person or group, it is directed at the manifestation of hatred or contempt. The s. 7(1)(b) inquiry is therefore not into whether the communication in issue is likely to persuade a recipient to feel hatred or contempt, but about whether the communication is likely to increase the risk of manifestation of hateful or contemptuous behaviour. ...

This reading of s. 7(1)(b) rests on the assumption that deep seated feelings of hatred and contempt for certain groups already exist in our society and flows from judicial recognition of "historically disadvantaged groups" .... The expression of these hateful or contemptuous feelings can be legitimized, and the risk of exposure to such manifestations thereby increased, by hateful or contemptuous communications which create an environment that suggests that the expression of such views is acceptable. If this happens, the risk of victimization of the vulnerable group - their experience of hatred and contempt - will increase. In my view, this is what s. 7(1)(b) seeks to prevent. To the extent that the expression in issue makes it more acceptable to express or manifest hateful or contemptuous beliefs against a person or group characterized by a listed ground, whether those beliefs are pre-existing or have been caused by the expression, it is "likely to expose" a person or group to hatred or contempt. (Emphasis in original)

[39] Clearly, and as noted by Ms. Iyer (at D/29, para. 138), other less restrictive interpretations are possible. She chose the one that, in her view, was most consistent with Charter values. In my view, her interpretation is a reasonable one considering the language and purposes of the Code. Her analysis is consistent with the purposes referred to by both the DCC and the Intervenor. It is focused on a consideration of the likely effect of communications on target groups (see D/28, para. 134). It seems to me that respect for freedom of expression, as enshrined in the Charter, is also consistent with the purposes of the Code, that is, to foster a society in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia (the Code, s. 3(a)), and to promote a climate of understanding and mutual respect where all are equal in dignity and rights (the Code, s. 3(b)). Seeking an interpretation that balances the protection against messages that are likely to expose persons to hatred and contempt with the right to freely express opinions that may be unpopular or controversial is consistent with the purposes of the Code. In my opinion, Tribunal Member Iyer did not inappropriately read down the Code.

b) Should this Tribunal apply the two-part test described in the CJC case?

[40] The fact that the CJC Tribunal did not inappropriately read down the legislation does not mean that I must apply the two part test. The Complainant and the Intervenor submit that a two part test is unnecessary - a one-step test that considers both the content and effect of the message is preferable. The DCC submits that the two-part test should be applied flexibly to allow a consideration of effects to inform the analysis of whether the expression is hateful or contemptuous, and vice versa. The AG submits that the two-part test is appropriate. The Respondents submit that the two-part test is a remedy derived from s. 52 of the Charter; as such, I should not consider reading down the legislation until that part of the hearing that will address the constitutional challenge to the legislation. I have concluded that the two-part test is not a constitutional remedy; rather it derives from an appropriate process of statutory interpretation. Therefore, I need not address the Respondents' argument on this point.

[41] The starting point for a consideration of this issue is the rule that an administrative tribunal is not bound by its prior decisions. Indeed, administrative agencies are obliged not to treat earlier decisions as precedent. The purpose of this rule is to ensure flexibility: see Robert W. Macaulay and James L. H. Sprague, Practice and Procedure Before Administrative Tribunals (Scarborough: Carswell, 1997) at 6-5 to 6-9; Consolidated Bathurst Packaging Ltd. v. International Woodworkers, Local 2 69, [1990] 1 S.C.R. 282 at 333.

[42] Macaulay and Sprague describe the purpose of this rule at 6-6:

In performing their mandates agencies should strive for continuity, consistency and a degree of predictability. Justice demands that equality of treatment and impartiality prevail when the merits of a case are considered. On the other hand, in the face of legal uncertainties and novel situations, it is not desirable to accord precedent and stare decisis a pivotal role. ...

Decisions of administrative agencies do not create precedents for anyone, including the agency. They are, at best, persuasive. While agencies should strive for consistency they are not bound by a mechanistic application of earlier administrative decisions. Rigid adherence to consistency can discredit an agency's ability to improvise or adapt.

[43] There is also value in consistency. In Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756 at 784-85, the Court quoted with approval the following statements about the value of consistency:

Consistency is a desirable feature in administrative decision making. It enables regulated parties to plan their affairs in an atmosphere of stability and predictability. It impresses upon officials the importance of objectivity and acts to prevent arbitrary or irrational decisions. It fosters public confidence in the integrity of the regulatory process. It exemplifies "common sense and good administration". (H. Wade MacLauchlan, "Some Problems with Judicial Review of Administrative Inconsistency" (1984), 8 Dalhousie L.J. 435 at 446.)

...[consistency] helps to build public confidence in the integrity of the administrative justice system and leaves an impression of common sense and good administration. It might be added, as regards administrative tribunals exercising quasi-judicial functions, that the specialized nature of their jurisdiction makes inconsistencies more apparent and tends to harm their credibility. (Suzanne Comtois, "Le contrôle de la cohérence décisionnelle au sein des tribunaux administratifs" (1990), 21 R.D.U.S. 77 at 77-78.)

[44] In Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952 at 968, Gonthier J. said that "the objective of consistency responds to litigants' need for stability but also to the dictates of justice." And, in Consolidated-Bathurst, supra, Gonthier J. said at 327:

It is obvious that coherence in administrative decision making must be fostered. The outcome of disputes should not depend on the identity of the persons sitting on the panel for this result would be [translation] "difficult to reconcile with the notion of equality before the law, which is one of the main corollaries of the rule of law, and perhaps also the most intelligible one"....

[45] According to Macaulay and Sprague (at 6-8 to 6-9):

The purpose of not encumbering agencies with the dead weight of precedent is to guarantee a flexibility and responsiveness in their decision-making which is not always forthcoming in the courts. Hence all the need to consider each case on its own merit. The danger is, however, that in releasing agencies from the moorings of stare decisis, they are being furnished, in effect, with a licence to be inconsistent. Inconsistency creates its own form of injustice, because it theoretically obviates the need to treat like cases alike. Furthermore, it means that a party may tailor its activities according to a give [sic] line of agency decisions, only to one day have the same agency "repent and recant", thereby throwing its affairs into disarray.

[46] This is only the second opportunity the Tribunal has had to consider the interpretation of s. 7(1)(b) of the Code. There are no judicial decisions in this jurisdiction on the issue. The public is best served by a consistent application of the law. However, that law should be flexible enough to ensure that it can evolve to deal with the broad range of circumstances that may arise. I do not think the interests of justice would be served by rigidly applying a test that was developed after so little experience with the legislation. Nor should the considerations described by the Tribunal when applying that test be seen as exhaustive.

[47] In my view, when assessing whether an expression violates s. 7(1)(b) of the Code, the Tribunal should consider whether the communication, viewed objectively, is hateful or contemptuous and, assessed in its context, whether the likely effect of the communication is to make it more acceptable for others to manifest hatred or contempt against the person or group concerned. I do not view the two-part "test" described in the CJC case as a rigid test that must be mechanistically applied in every case. Rather, it provides an analytical framework for assessing both the content and the effect of publications. There may be a variety of analytical frameworks that will permit a consideration of both the content and the effect of a message that would withstand a constitutional challenge. However, for the purpose of this case, I intend to use this two-part test as the framework for my analysis. The test is well reasoned and understandable. It encompasses, with some modifications, those considerations which I consider to be necessary in determining whether a publication contravenes s. 7(1)(b). Moreover, Ms. Iyer's interpretation was informed by the submissions she received and the cases she considered with respect to Charter values. Because of the severance of constitutional issues, I did not have that opportunity. In short, I find the two-part test to be a useful analytical framework that is worth developing through its application in similar cases.

Did the Respondents publish or cause to be published statements which are likely to expose Jewish persons to hatred or contempt contrary to s. (7)(1)(b) of the Code?

[48] Human rights hearings are similar in form to judicial proceedings. They are adversarial. When weighing evidence the Tribunal usually has the opportunity of comparing the evidence of one witness against that of witnesses for an opposing party, or of assessing the reliability of the evidence after it has been tested through cross-examination. That assessment is informed by the submissions of all parties. In this case, all of the submissions I received supported the Complainant's position that the statements published by the Respondents in the columns in question were likely to expose Jewish persons to hatred or contempt. This is not surprising. The Respondents chose not to participate in the hearing except to provide written argument concerning the interpretation of the Code. (As already noted, the Respondents' position on interpretation would lead to an interpretation that is less favourable to the Respondents than the interpretation adopted by Ms. Iyer.) As a result, all of the witnesses were called in support of the Complainant. Their evidence was not tested through cross-examination. It is not appropriate for me to attempt to fill the vacuum left by the Respondents' absence, especially when the Respondents deliberately chose not to participate. Nevertheless, I must assess the evidence presented at the hearing to determine whether it is sufficient to establish a contravention of s. 7(1)(b) of the Code.

[49] The complaint initially encompassed four columns, all written by Mr. Collins. The Complainant alleged that Mr. Collins' columns have a cumulative effect of promoting hatred or contempt towards Jewish people. At the hearing, the Complainant relied upon a number of columns that were not part of the original complaint. Although I admitted them into evidence at the hearing (Exhibit 3), I have not found them to be helpful except as evidence of the context in which the other four articles were published. Only the Complainant provided any evidence in relation to the additional articles. Moreover, they did not form part of the Particulars of Allegation provided to the Respondents as part of the original complaint. It is possible, albeit unlikely, that the Respondents would have presented evidence to respond to the columns had they known that the Complainant intended to rely on them at the hearing. My analysis will therefore be limited to the four columns that were part of the initial complaint.

a) Were the statements hateful or contemptuous?

[50] The Complainant testified about his understanding of the messages conveyed in each of the columns. In summary, he understood the columns to convey messages of Jewish conspiracy, Holocaust-denial and persecution by Jewish pressure groups of those who disagree with them. He felt that the first column (Appendix 1) trivialized the Holocaust. It was described as the "six million matter" or the "six million story". The column characterized the Holocaust as a hoax and propaganda exercise perpetrated by Jews. The column also portrayed those who deny the Holocaust as being unfairly persecuted by Jews. The Complainant said that the second article, "Hollywood propaganda" (Appendix 2), suggests that there are not real survivors of the Holocaust; that it is a fraud perpetrated on the world. It suggests the Holocaust itself was a swindle. It also suggests that the Jews control the media. He found similar themes in "Pondering far better than pandering" (Appendix 3) and "Some value freedom of the press, some don't" (Appendiix 4).

[51] Dr. Lionel Kenner is a retired professor of philosophy. He was not called as an expert witness. He is Jewish and lives in North Vancouver. The North Shore News is delivered free to his door and most other residences in the community. His interpretation of the articles was similar to the Complainant's. He understood them to suggest that various Holocaust deniers are heroic victims of censorship; that the Jews are using the Holocaust "story" to raise money; that the Jews control the press and Hollywood; that the Holocaust is not an historical fact and that the six-million figure is inflated. He testified that the messages conveyed by Mr. Collins are the same as those conveyed by the neo-Nazi movement. He stressed that he is not saying that Mr. Collins intends to be a Nazi. However, he described Mr. Collins as, in effect, the "voice of the neo-Nazi movement on the North Shore" - "he sings the same song which they sing".

The Expert Evidence

[52] Dr. Frances Henry is a professor of anthropology who specializes in race relations. I determined that Dr. Henry is an expert in race relations and discrimination, qualified to provide an opinion on anti-Semitism in society, and on the identification and effect of anti-Semitic propaganda reported in the media in Canada which would encompass the messages contained in Mr. Collins' articles. Her evidence was that the "new" anti-Semitism places great emphasis on Holocaust-denial and belief in Jewish conspiracies and control of governments. She noted that racism may be expressed overtly or may be covert. It has become more subtle in recent years. In her view, the more serious forms of racism are those that are hidden in popular culture, such as in the words, images and descriptions used by media writers. Dr. Henry stated that good examples of such imagery can be found in Mr. Collins' articles.

For example, he trivializes the Holocaust as the "six million matter" or the "six million story". He refers to anti racist action in the Professor Phillipe Rushton matter as being the work of "Third World thugs and white lunatics". Holocaust survivors who are being compensated by the German government are described as being "an endless number" when in fact, there were very few survivors. The movie Schindler's List is referred to as "Swindler's List." Mr. Collins alludes to one of the strongest dimensions of current anti-Semitism when he quotes and vehemently agrees with an American journalist who wrote that "its not Jewish tragedy that's remembered this week; its Jewish power to which homage is being paid." In these and other citations from these articles, Mr. Collins is expressing often in an indirect and rather more subtle way, the tenets and beliefs which underlie anti-Semitism" (Exhibit 12, p. 6).

[53] Dr. Henry noted (at Exhibit 12, p. 8) that, by exaggerating the power of Jewish people to control the media, Mr. Collins is reflecting one of the main stereotypes often used against Jews; that is, their supposed control over key institutions which shape public views. She testified that Mr. Collins expresses anti-Semitic views indirectly. For example, he doesn't deny the Holocaust; rather, he says the numbers are greatly exaggerated. He doesn't use overtly racist comments, and he calls attention to power and control by using techniques of trivialization; "... in other words, you have to read it fairly carefully to get the impact of what he's really saying." (Transcript, 22 July 1998, pp. 34-35)

[54] Dr. Henry concluded as follows:

In sum, it is my opinion that any reasonable person would perceive discriminatory and biased ideas and statements in the four articles written by Doug Collins. Although he does not make overtly anti-Semitic statements, the tone of the articles reveals little regard for Jewish people or their history. Mr. Collins perpetuates the stereotypes against Jews especially those which allege widespread power and influence. ... The ideas and statements contained in these four articles reflect and, in fact, reinforce common anti-Semitic stereotypes. Mr. Collins not only expresses discriminatory attitudes but also exposes Jewish people to hatred and contempt. (Exhibit 12, pp. 14-15)

[55] Dr.. Barbara Harris is a professor in linguistics. I determined that she is an expert in sociolinguistic analysis, qualified to give an opinion regarding the messages contained in the four articles that were the basis of these complaints. She applied a process known as discourse analysis to the four articles. Discourse analysis "is also known as 'sociolinguistic analysis', and it essentially looks at language in its interactional phase, as between ...a writer and reader(s)" (Exhibit 9, p. 1). In her analysis she considers "the linguistic details in a social context, ... the lexicon that Mr. Collins uses, the rhetorical devices that he employs, and the pragmatics, involved, i.e. how his word choices and writing techniques relate to the social context."

[56] Dr. Harris testified that she had concluded from a sociolinguistic point of view that the columns convey the following messages: (a) that the magnitude of the Holocaust has been grossly exaggerated out of motives of greed; (b) that a Jewish conspiracy exists in Hollywood to offer a barrage of pro Holocaust propaganda at the expense of other legitimate topics; (c) that those who deny the Holocaust are the victims of Jews, the Canadian Jewish Congress and others who support the truth of the Holocaust; (d) that Jews persecute those who believe the Holocaust has been overstated; and (e) that Jews are the real aggressors and should be equated with Nazis.

[57] In her report she concludes:

In short, these four articles are full of pejorative and derogatory language, and the rhetoric depends on devices intended to put the author in good light ... expressed through faulty analogies, specious arguments and undocumented 'facts'. To the uncritical reader, they would undoubtedly say that Jews are powerful, vindictive, and hypocritical in upholding the historicity of an event the magnitude of which Collins and his fellows deny. On analysis, these articles certainly use language that conveys a discriminatory message, and imposes a burden on the Jewish community as a whole by convincing readers not only of the gross exaggeration of the Holocaust but of the reality of a Jewish conspiracy to persecute those who hold this view. (Exhibit 9, pp.6-7)

[58] Dr. Morton Weinfeld is a professor of sociology. He did not testify at this hearing. However, an expert report that he submitted at the hearing into the CJC complaint, and a transcript of his evidence from that hearing were entered into evidence before me. Before leaving this hearing, counsel for the Respondents expressed his support for the admission of Dr. Weinfeld's report and transcript into evidence. I admitted his evidence as an expert in the areas of ethnic and race relations, ethnicity and public policy in modern Jewish studies. He is qualified to give an opinion on the identification and effect of hate speech. His evidence relates only to the "Hollywood propaganda" column.

[59] His conclusion was that that column "specifically reinforces several well known and well documented anti-Semitic stereotypes." The column accuses Jews of: (a) being dishonest and untrustworthy; (b) being motivated mainly by greed and money; (c) controlling the media (and Hollywood) and using it for "Jewish" objectives; (d) deliberately exaggerating the magnitude of the Holocaust, claiming that "hundreds of thousands" of Jews perished; and (e) being vengeful and anti-German. He notes:

All these reinforce classic and current anti-Semitic stereotypes. A clear if unstated undercurrent throughout the column is the suggestion of conspiratorial forces at work, to pull off this 'swindle' of the Holocaust and Hollywood's recognition of it. The conspiratorial motif is another staple of anti-Semitica, from The Protocols of the Elders of Zion, to the present day. (Exhibit 15, p. 4)

[60] The Complainant, the DCC and the Intervenor all submit that it is important to examine the messages within the context of the persecution of Jews. They rely primarily on the report of Dr. Leonidas Hill for evidence of the history of anti-Semitism. Dr. Hill is a professor of history at the University of British Columbia. He too provided an expert report to the CJC hearing. The Respondents took no position on the admissibility of that report in this hearing. I found him to be qualified as an expert in the history and origins of anti-Semitism. I admitted his report into evidence (Exhibit 13). Like the Weinfeld report, it addresses only the "Hollywood propaganda" column.

[61] Dr. Hill observes that the present manifestations of anti Semitism developed in the period after the Second World War. When the Federal Republic of Germany acknowledged war crimes against the Jews by paying reparations to Israel, Nazis, neo-Nazis and anti-Semites denied that the Nazis had attempted to exterminate large numbers of Jews, especially in gas chambers. Holocaust deniers do not accept the written evidence from Nazi records concerning the death camps. According to Dr. Hill:

At the heart of this kind of anti-Semitism is an attempt to maintain the myth of a Jewish plot or conspiracy, in this case supposedly to sustain Israel and to slander German history and bleed the German people through reparations. (Exhibit 13, p.5)

[62] Dr. Hill concludes that anti-Semitism has many layers reaching back through most of recorded history. Social problems have been blamed on Jewish conspiracies for centuries. Anti Semites spread slander about Jews most frequently through subtle and devious means by using code words and insinuation, and thereby strive to stimulate others to share their hatred of Jews.

[63] Dr. Hill noted that Mr. Collins taps many of the currents that run through the history of anti-Semitism. The column's assertion of a coordinated Jewish domination of Hollywood is consistent with "the mythology about Jewish control of Bay Street or Wall Street or of newspapers, radio, television, cultural and academic life" (Exhibit 13, p. 6). Mr. Collins' "Hollywood propaganda" article suggests that the story of Schindler is propaganda and a swindle, despite the historical foundation for the story. He also suggests a much larger conspiracy by Jews to effect a swindle. Mr. Collins suggests that the number of between five and six million victims of the Holocaust is widely accepted because of Jewish propaganda. Dr. Hill also states that Mr. Collins promotes mistrust and contempt by suggesting that Jews are deceitful and conspire to swindle the non-Jewish world for their own gain.

[64] The Complainant also tendered into evidence a summary of the opinion of Dr. Phyllis Senese (Exhibit 8). Dr. Senese teaches at the University of Victoria, specializing in the intellectual and social history of Canada. The Complainant had given the Respondents notice that he intended to call Dr. Senese as an expert witness. She was not called. The exhibit appears to be little more than notes of her intended evidence. I have not given any weight to her opinion except to note that there is nothing in it that is inconsistent with the evidence of the other experts concerning the presence of anti-Semitic content in Mr. Collins' four columns.

[65] In the CJC case, Tribunal Member Iyer asked the question: "Would a reasonable person understand this message as expressing hatred and contempt?" In answering this question, she considered the content and tone of the message and the vulnerability of the target group. While I accept both the objective standard reflected in the question and the factors considered by Ms. Iyer, in my view, the question to ask is: Would a reasonable person, informed about the context, understand the message as expressing hatred or contempt?

[66] Context formed part of Ms. Iyer's analysis of the meaning of the message. Her "reasonable person" was someone assumed to share the characteristics of the message's audience and who would, therefore, be informed about at least the community and cultural contexts (see D/47, para. 247). Where we may part is on the importance of context at this stage of the analysis. Ms. Iyer placed significantly more weight on context in the portion of her analysis dealing with the impact of the message (see D/47, para. 248). I do not make that distinction. In my view, context is critical in understanding the meaning of a message. The meaning conveyed by an expression may vary depending on its context. An expression that appears neutral or innocuous out of context may take on a very different meaning when put in its proper context. Context for this purpose includes not only the publication context but also the social and historical contexts. The "reasonable person" is not a purely abstract entity. The person is someone of this place and this time, with knowledge of the past and present. The reasonable person brings with him or her a set of social and personal characteristics (albeit characteristics that are unknown). What a reasonable person will understand will depend on the extent to which they are informed of the context of the message. Accordingly, that context must be a consideration in this part of the test.

[67] Tribunal Member Iyer concluded (at D/48, para. 252) that the "Hollywood propaganda" column was anti-Semitic but did not "capture the degree of calumny, detestation or vilification signified by 'hatred or contempt' as the phrase is used in s.7(1)(b) of the Code." The DCC and the Intervenor take issue with that conclusion. Their position is stated succinctly by the DCC: "Anti-Semitism considered in its proper context constitutes hate speech." Dr. Henry stated that her operational definition of anti-Semitism was "the particular form of racism which promotes negative stereotyping and hatred against Jews". Dr. Harris testified that, by definition, anti-Semitism conveys hatred against Jews.

[68] It is understandable that the term "anti-Semitism" is viewed by many as being synonymous with "hatred of Jews". There is clearly a close association. Indeed, it may be that, when used in casual speech, they are synonymous. However, the Supreme Court of Canada has provided a definition of "hatred" that must be used when applying the Code. The DCC provided me with three dictionary definitions of "anti-Semitic". The Penguin Canadian Dictionary (1990) defines "anti-Semite" as "one who hates Jews"; the Concise Oxford Dictionary (7th ed.) (1982) defines "anti Semite" as "hostile to Jews"; the Gage Canadian Dictionary(1997) defines "anti-Semitism" as "a dislike or hatred of Jews; prejudice against Jews". These definitions include conduct that would not meet the high threshold for hate speech described in Taylor; i.e., "unusually strong deep-felt emotions of detestation, calumny and vilification." In my view, labeling a message as "anti-Semitic" is not sufficient to demonstrate that it conveys hatred or contempt within the meaning of s.7(1)(b) of the Code. It is necessary to go behind the label and inquire into the nature of the anti-Semitic speech.

[69] In this case, the columns contain themes that reinforce some of the most virulent forms of anti-Semitism. They convey notions that Jews conspire to manipulate society's most important institutions for their own gain; and that, through control of the media, they have perpetrated a massive fraud to exaggerate their suffering during the Holocaust. The Jews are portrayed as selfish, greedy and manipulative.

[70] In the CJC case (at D/48, para. 252), Tribunal Member Iyer aptly described the tone of the "Hollywood propaganda" column as "nasty", "deliberately provocative and insulting", and said that 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 are still duped." In this case, the Complainant alleges that the cumulative effect of Mr. Collins' columns is hateful or contemptuous. In my opinion, collectively, and through repetition of anti-Semitic themes, the columns take on a vicious tone that taps into a centuries-old pattern of persecution and slander of Jews. They perpetuate the most damaging stereotypes of Jews.

[71] As noted in the CJC case, the Jews remain a vulnerable group. Tribunal Member Iyer stated (at D/21, para. 89):

The anti-Semitism context was succinctly described by La Forest J. in Ross [v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825], supra, at 875 as a recognition that Jews are "an historically disadvantaged group that has endured persecution on the largest scale". The existence and expression of anti Semitism in Canada and elsewhere, both past and present, is beyond doubt. The fact that many of the leading Charter cases on freedom of expression and discrimination involve anti-Semitic speech and activities is a telling indication of the persistence of anti-Semitism in Canada and the continuing vulnerability of the Canadian Jewish community to it: see Keegstra [v. R., [1990] 3 S.C.R. 697]; Taylor; R. v. Andrews,[1990] 3 S.C.R. 870; R. v. Zundel, [1992] 2 S.C.R. 731; Ross.

[72] 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."

b) 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?

[73] In the CJC case, Tribunal Member Iyer concluded (at D/48, para. 256) that the second part of the test

... requires an objective and contextualized assessment of the likely impact of the impugned publication in terms of whether it will legitimize the expression or other manifestation of hatred or contempt by others against the particular person or group.

[74] Factors to be considered at this stage include the credibility likely to be accorded the expression, and how it is presented. The vulnerability of the target group and the degree to which the expression reinforces existing stereotypes will be considered here, as they were in the first stage. In my view these are appropriate considerations.

[75] Dr. Hill concluded:

In ... [the "Hollywood propaganda"] article Mr. Collins has asserted anti-Semitic fictions in the face of serious scholarship and rational argument. These lies fuel anti-Semitism, which in practice results in intolerance and mistreatment of Jews. The purpose of these lies is to stimulate hatred and contempt towards Jews. The effect of these lies is to enrage and frighten Jews. Those who perpetrate these lies are by definition anti Semites.

Mr. Collins' column contributes to the hatred of the Jews because his writings echo the themes and anti-Semitic canards found in the history of anti-Semitism. He promotes mistrust and contempt by suggesting that Jews are deceitful and conspire to swindle the non-Jewish world for their own gains. Mr. Collins poses as a dauntless civil libertarian and a champion of free speech. The pose has made it possible for him to continue publishing his anti-Semitic diatribes in newspapers such as The North Shore News. Access to publication makes him credible to some of those who are already inclined to be anti-Semitic and to those who tend to believe anything that appears in print. (Exhibit 9, p. 7)

[76] According to Dr. Henry, racist expression has become subtler over the years. The subtle and less overt racist messages reflected in the four columns are more damaging than overt ones. She testified:

I think the subtle forms influence more people. Whereas the more overt forms tend to influence or reinforce those who already also have this kind of sentiment. I think the danger in this kind of journalism is that people who are not in the completely bigoted camp, but the ones who are thinking and aren't sure and who are bordering on racist sentiment are the most influenced by this kind of journalism because they say: Well this is really, you know, what I think. And we have a reputable journalist telling us this. So on the one hand this kind of journalism does reinforce the extreme right. But on the other hand I think its more important role is its influences on those who lean towards bigotry but aren't quite sure. And they have their views affirmed by journalism of this kind. (Transcript, 22 July 1998, pp. 35-36)

[77] Dr. Henry also testified that the repetition of the messages would have a cumulative effect, similar to the technique used by television evangelists. Similarly, Dr. Harris testified that repetition increases the effect of a message:

Because the more you read something, essentially - again, this is venturing into psycholinguistics - but it's generally found when you're looking at perception of language, that the more you hear something, the more something is repeated, the more likely the hearer, or the reader is to believe it. I mean, that's the whole technique on which brainwashing is based after all. (Transcript, 21 July 1998, pp. 247-248)

[78] Both Dr. Henry and Dr. Robert Anderson, head of the Communication Department at Simon Fraser University, provided evidence concerning the impact of columns published in a community newspaper.

[79] According to Dr. Henry, the print media is a major transmitter of society's cultural standards, myths, values, roles and images. It may be used to reinforce and reproduce racism through negative stereotyping, ethnocentric judgements, marginalization of minority groups and the racialization of issues such as crime and immigration. As one of the most influential institutions in society, the media mold the opinion of large segments of the population and help create the public agenda and public discourse. The power of the media to use propaganda techniques to disseminate a particular point of view enables journalists such as Mr. Collins to effectively transmit messages against Jews. She wrote that the fact that these messages are published in a community newspaper is significant. Community newspapers are distributed widely with little or no charge. The messages contained in them are likely to reach a substantial audience.

[80] Dr. Anderson's report was filed in the CJC case. He was qualified as an expert in the role of the media and specifically the role of community newspapers. His report had been provided to the Respondents in accordance with the Evidence Act, R.S.B.C. 1996, c. 124. They took no position on its admissibility. I admitted it as Exhibit 14. Dr. Anderson did not testify. His report discussed the effect of publications in a community newspaper such as the North Shore News. Dr. Anderson pointed to "an established and growing body of opinion that the forms of prejudice and structural discrimination in the past have been framed and explained, and then often justified, in and through the press" (Exhibit 14, p. 2). These activities of the media have contributed to the mobilization of large numbers of people to carry out the intimidation and persecution of target social and ethnic groups.

[81] Dr. Anderson noted that community newspapers play an important role in a large city because major newspapers cannot provide details about all local events. He stated that the North Shore News would be widely read and have influence. Columnists in a community newspaper may play a relatively important role. Dr. Anderson concluded that, if a column expressed hatred or contempt for a particular religious or ethnic group, the publication would likely expose the group to hatred or contempt.

[82] The Respondents did not present any evidence. Therefore, I do not know if there were other columns, editorials, or letters to the editor that may have ameliorated the effects of Mr. Collins' columns. I have only the evidence of the witnesses who testified and the experts who provided reports to me. They all support the Complainant. The ultimate decision about whether the columns at issue contravene s. 7(1)(b) of the Code is for me to make. In doing so, it is open to me to accept all, none or part of the evidence of any expert. The Respondents were provided with copies of the expert reports prior to the hearing. They had an opportunity to present evidence to rebut the opinions or to impugn the reliability of the expert's opinions through cross examination. In this case, the Respondents have provided me with no reason to disregard any of the experts' opinions. All of this evidence, to varying degrees, expresses subjective opinions in areas that do not allow for precise measurement. Nevertheless, except as indicated elsewhere in these reasons, I have found the expert opinions to be helpful.

[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.


[84] 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.

[85] 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.

[86] 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.


[87] According to s. 37(2)(a) of the Code, if a complaint of discrimination is found to be justified, the Tribunal must order that the Respondents cease the discriminatory practice and refrain from engaging in similar conduct. Accordingly, I order the Respondents to cease publishing statements that expose or are likely to expose Jewish persons to hatred or contempt and to refrain from committing the same or a similar contravention.

[88] The Code also provides the Tribunal with broad discretionary powers to remedy the effects of conduct that contravenes the Code. This is the first case in this jurisdiction where a complaint under s. 7(1) has been found justified.

[89] It is important to keep in mind that the purposes of the Code are remedial, not punitive: see, for example, Taylor, supra at 933. As noted by the Supreme Court of Canada in Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84 at 90, human rights legislation is aimed at ameliorating the effects of discrimination, rather than punishing the perpetrator.

[90] The Complainant submits that an order of $2,000 would be appropriate to compensate him for his loss of self respect and dignity. In addition, he suggests that the Respondents should be ordered to pay $5,000 per article to charity to ameliorate the effect of the discrimination. He also submits that the Respondents should be required to publish an apology to the Jewish community. The DCC supports the Complainant's position that the circumstances warrant an award of damages to the Complainant and an order requiring publication of a formal apology.

[91] Section 37(2)(d) of the Code gives me the discretion to award the Complainant an amount that I consider appropriate to compensate him for injury to dignity, feelings and self respect. The Complainant testified as follows about the effect of this article on him:

... I entered into this because of a concern, security concern, because of what has happened in history against my people, against my own experiences that I've had with anti-Semitism, because I have experienced my share of it in certain respects. And I wanted to do something perhaps that could stem the matter, that would provide - perhaps, if there was a possibility of achieving justice, and also showing that this - these are lies, these are distortions, this is against humanity, that people - nobody should have to endure this. Not Jews. Not anybody who is identifiable by characteristics that they cannot change.

I do not choose to be a Jew. I was born this way. I carry myself proudly that I am, but to change that, that's it. That's who I am. And I have no particular malevolence towards anybody. I just want to get on with my life and have a family and have a business, just like anybody else would want to pursue their life. But, unfortunately, there are these projects. There is this stuff going on where lies are being spread about us and it's being done so - done so in a representative systematic fashion. (Transcript, 20 July 1998, pp.88-89)

In response to follow up questions from his counsel, the Complainant explained that he felt "[i]t's a threat. It's very uncomfortable" and that he has "reason to fear". The Complainant also testified that he is under surveillance. Two of his conversations (one with a reporter, the other with his wife) were surreptitiously recorded and played back over his home telephone.

[92] I am unable to place weight on the evidence concerning the surveillance. To be the victim of such conduct would undoubtedly be frightening. However, there is no evidence before me as to the identity of the perpetrator of the surveillance or the reason for it. There is nothing to link Mr. Collins' columns to the surveillance. Nevertheless, I accept that the Complainant suffered injury to his dignity and feelings of self respect as a result of the columns written and published by the Respondents. I have found no cases in which an award has been given for injury to feelings resulting from hate speech. Compensation has been awarded in cases involving other forms of speech that contravenes the Code, for example, sexual or racial harassment.

[93] Considering the remedial purposes of the Code, I see no basis for denying compensation in cases of hate speech. Neither do I see any basis for applying different principles to compensate complainants in cases involving hate speech. Considering the nature of the speech, its frequent repetition, and the fear it caused the Complainant, an award of $2,000 to compensate the Complainant for injury to dignity and feelings of self respect is appropriate and I so order.

[94] There may be cases where there is evidence that a charitable organization has been directly affected by a contravention of the Code, in which case compensation under s. 37(2)(d) would be appropriate. That is not the case here. However, s. 37(2)(c) provides the Tribunal with the discretion to order that a person who has been found to have contravened the Code "take steps ... to ameliorate the effects of the discriminatory practice". An award to ameliorate the effects of a s. 7 contravention is possible. However, s. 7 differs from other liability-creating provisions of the Code in that its focus is preventative. It prohibits conduct that is "likely" to expose protected groups to harm. It does not require proof that the publications actually caused harm. In order to justify an ameliorative award, it must be evident that the award will be used to reduce the effects of the conduct. So, for example, an award might be made under this section to enable a charitable organization to print a pamphlet that would be delivered freely throughout the community, or to engage in educational public meetings. An award under this section that was not directed at ameliorating the effects of the contravention would be inappropriate.

[95] There was little evidence of the impact of these column on the Jewish communities where they were published. The Complainant testified that there was concern in the Victoria community. A few people got together and contacted The Daily Victorian's advertisers to express their concerns. Concerns were also brought to the attention of City Council, which resulted in a motion that hate propaganda not be distributed at Victoria City Hall. The Daily Victorian went out of business. (I have no evidence concerning the reasons for its demise.) There is no evidence that Mr. Collins' columns were subsequently published or distributed in Victoria. The Complainant entered evidence to show that Mr. Collins' columns have been reproduced on the Internet (Exhibits 5 & 6). There is no evidence, however, that the presence of these columns on the Internet has caused actual harm. Mr. Kenner testified about the impact on him as a Jewish member of the North Shore community. He described his reaction to the columns as "Indignant ... outraged intellectually at the dishonesty". He also testified that he was aware of an incident in which a swastika was drawn on a synagogue. There is no evidence that links that incident to Mr. Collins' columns. In addition, the Complainant entered into evidence a transcript of the testimony of Dr. Elterman during the CJC case (Exhibit 7). In it he describes the circumstances which led the CJC to file its complaint with the Council of Human Rights. The CJC received a number of faxes following publication of the "Hollywood propaganda" column asking what the CJC was going to do about it. He also testified that the article was "... putting forward an injurious, harmful message about Jewish people which causes great suffering, anguish in Jewish people to read ...".

[96] The Complainant submits that an award should go to a charity. Given the sparse evidence concerning the actual effect of the columns on the Jewish community, I do not think it would be appropriate to order a large award to remedy the effect of the columns. A small award to a named charity would be appropriate if it were clear that the charity would use the award to ameliorate the effects of the prohibited conduct. The Complainant does not suggest how such an award might serve to ameliorate the effects of the publications at issue. In these circumstances, an award to a charitable organization is not appropriate.

[97] The Complainant and the DCC submit that it would be appropriate to order the Respondents to publish a formal apology to the Jewish community. I have no doubt that an apology, sincerely made, would go a long way towards assuaging the ill feelings generated by Mr. Collins' columns. There is, however, no indication that the Respondents feel any remorse or regret about any harm caused by these publications. I can see little value in compelling an insincere apology, especially in a context where, through its editorial control of the content of its publication, the North Shore News has the ability to undermine any ameliorative effect such an apology might have. I therefore decline to order that the Respondents issue a formal apology.

[98] I think it is important, however, that the Respondents' readers be made aware of this decision and the reasons for it. I therefore order that the Respondents publish the Summary that accompanies this decision in one of the next three regular issues of the North Shore News. The Summary must be printed unedited and in the usual format and typeface of the North Shore News. This order does not limit the Respondents' ability to report on or comment on this decision in any way.

[99] In summary, I order the following:

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.

[100] As I noted in the introduction to these reasons, issues related to the constitutional validity of the Code were severed from the issues that I have decided in these reasons. I reserve the right to hear and decide those constitutional issues.Tom W. Patch, Tribunal Member

Vancouver, British Columbia

February 2, 1998

AppendicesAppendix 1

News flash! Daily press discovering free speech

Doug Collins

January 12, 1994

Appendix 2

Hollywood propaganda

Doug Collins

March 9, 1994

Appendix 3

Pondering far better than pandering, folks

Doug Collins

March 23, 1994

Appendix 4

Some value freedom of the press, some don't

Doug Collins

June 26, 1994

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Harry Abrams  Doug Collins  BC Human Rights Tribunal  North Shore News  Daily Victorian



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