Leading Cases - Publication

• Section 7
• The meaning of hatred or contempt
• Publications that indicate discrimination or an intent to discriminate

Section 7

Discriminatory publication

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

1. indicates discrimination or an intention to discriminate against a person or a group or class of persons, or
   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, gender identity or expression, or age of that person or that group or class of persons.

(2) Subsection (1) does not apply to a private communication, a communication intended to be private or a communication related to an activity otherwise permitted by this Code.

The meaning of hatred or contempt

Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11: Section 7(1)(b) of the Code forbids publications that are likely to expose a person or group to hatred or contempt based on a protected personal characteristic. This does not include all derogatory comments. It does not include mere dislike. Hatred and contempt are extreme feelings. Hatred involves detestation, extreme ill-will, and the view that the target has no redeeming qualities. Contempt involves looking down on someone or treating them as inferior. The Court said:

In my view, “detestation” and “vilification” aptly describe the harmful effect that the Code seeks to eliminate. Representations that expose a target group to detestation tend to inspire enmity and extreme ill-will against them, which goes beyond mere disdain or dislike. Representations vilifying a person or group will seek to abuse, denigrate or delegitimize them, to render them lawless, dangerous, unworthy or unacceptable in the eyes of the audience.  Expression exposing vulnerable groups to detestation and vilification goes far beyond merely discrediting, humiliating or offending the victims. (para. 41)

Elmasry and Habib v. Roger’s Publishing and MacQueen (No. 4), 2008 BCHRT 378: In deciding whether a publication is likely to expose a person or group to hatred or contempt, the Tribunal considers:

• the vulnerability of the target group
• the degree to which the publication on its face contains hateful words or reinforces stereotypes
• the content and tone of the message
• the social and historical background for the publication
  
• the credibility likely to be accorded the publication and
• how the publication is presented (para. 83)

Publications that indicate discrimination or an intent to discriminate

Carson v. Knucwentwecw Society, 2006 BCSC 1779: Section 7(1)(a) of the Code prohibits publications that indicate discrimination or an intention to discriminate. It is not necessary that the publication indicate discrimination or an intention to discriminate with respect to an area otherwise protected by the Code, such as employment or tenancy (paras. 21-33).

Palmer v. BCTF and others, 2008 BCHRT 322: The complainant must show that the publication had a discriminatory effect, or likely effect, or was intended to do so. (para. 43) An opinion about what the government should do about a matter of public debate does not, on its own, indicate an intention to discriminate. The Code does not aim to stifle public comment or democratic political action on matters of legitimate public interest. It is not enough if a reader finds the publication offensive, or disagrees with its contents or its purpose (paras. 51-58).

Ero obo others v. Earl’s Restaurant, 2012 BCHRT 428: The Tribunal may consider the following factors, which are also relevant under s. 7(1)(b):

• the vulnerability of the target group
• the degree to which the publication contains hateful words or reinforces stereotypes
• the content and tone of the message
• the social and historical background for the publication
• the credibility likely to be accorded to the publication
• how the publication is presented