FIGHTING BACK

1. Combatting Hatred Using Class Proceedings FIGHTING BACK

2. What is a class action? • A legal proceeding whereby one or more members of a class of persons may commence a proceeding in the court on behalf of the members of the class. • The benefits of a class proceeding are: • Access to Justice • Judicial Economy • Modification of the Wrongdoer’s Behaviour

3. Can class actions be an effective means of combating hatred: The U.S. Experience • U.S. Poverty law centers have historically used class actions very effectively to attack segregation • For example, the Rosa Parks case, Browder v. Gayle (1956), which brought segregation to an end on public buses. • U.S. Class Actions continue to pursue equality rights • Gonzalez v. Abercrombie & Fitch (2005): the settlement required the defendant to pay $50 million, less attorneys’ fees and costs to Latino, African American, Asian American and female applicants and employees who charged the company with discrimination. The settlement also required the company to institute a range of policies and programs to promote diversity among its workforce and to prevent discrimination based on race or gender.

4. The Canadian Experience: Hislop v. Canada • Hislop v. Canada is the only successful Charter class action to date • Individual test case approach had failed as the government settled on the Court steps with squeeky wheels. • Certification was granted to provide a comprehensive solution. • To the extent that the Canada Pension Plan, R.S.C. 1985, c. C-8 withheld from same-sex surivors entitlements and rights to which similarly situated opposite-sex survivors were entitled, it was declared unconstitutional and arrears payments of survivors pensions were payable to survivors of same-sex partners. • The class action process worked.

5. Can class actions be an effective means of combating hatred? • Problems: • You have to prove a very high threshold for hatred (see Owens and Boisson) • The Courts don’t offer effective remedies (see Little Sisters belowand Canada (Justice) v. Khadr, [2008] 2 S.C.R. 125 ) • Class actions depend on lawyers taking on contingency cases and Courts are very reluctant to offer financial compensation (Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405 and Schachter v. Canada, [1992] 2 S.C.R. 679, but see Ward below) • Class actions for defamation have not been available in Canada (see Elliott below and Gauthier below) • Unless you can point to an effective remedy as the outcome of a class action, you don’t get one (See Guimond below)

6. Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347 • Justice Gonthier at para. 20: • “[I]t is true that it is not necessary to pursue a class action to obtain a declaration of constitutional invalidity and therefore, that it is generally undesirable to do so.”

7. Elliott v. Canadian Broadcasting Corp., [1995] O.J. No. 1710 (C.A.) • Donald Elliott, one of the approximately 25,000 surviving Canadian aircrew who served with Bomber Command in North West Europe in World War II, sought to bring a defamation action on their behalf against the CBC for the production and publication of the film, "The Valour and The Horror: Death by Moonlight - Bomber Command" • Montgomery J. at first instance concluded that no harm was done to the reputations of the plaintiffs. Further, he concluded that there could not be a libel group of 25,000. • The Court of Appeal agreed that the statements in issue were not disparaging of Canadian air crews but left open the possibility that a class action might be appropriate in some instances for defamation. • “I would not, however, want to be seen as accepting his view that there cannot be a libel of so large a group as that represented by the appellants. That issue does not have to be decided for purposes of this appeal, and I would therefore leave it open for resolution at a future time.”

8. Gauthier v. Toronto Star Daily Newspapers Ltd.,[2003] O.J. No. 2622 (S.C.J.) • Motion by the defendants to strike out the plaintiffs' statement of claim. • The plaintiffs, Toronto police officers and civilian personnel, brought a class action against the defendants as a result of articles published in the defendant newspaper in 2002. The articles claimed that the police treated black persons more harshly than white people, that this was consistent with racial profiling and that black drivers were targeted by police. The plaintiffs claimed damage to their reputations by portraying them as racists and bigots. • Justice Cullity struck the plaintiffs claim, finding that, in general defamation was a tort applicable only to individuals. The articles could not be understood to apply to each and every member of the police service. The focus of the articles was on the police service as an institution, not on any particular members or indeed on all members. As the claim was dependant on the contention that every member of the service was defamed, the statement of claim had to be dismissed as disclosing no cause of action.

9. The remedy problem: Little Sisters Number 1 • In Little Sisters Number 1 - [2000] 2 S.C.R. 1120 • the trial judge found that the Customs officials had wrongly delayed, confiscated, destroyed, damaged, prohibited or misclassified materials imported by the appellant bookstore on numerous occasions and that these errors were caused by the "systemic targeting" of the store's importations. • He concluded that the Customs legislation infringed s. 2(b) of the Canadian Charter of Rights and Freedoms, but was justified under s. 1. • Although he denied a remedy under s. 52(1) of the Constitution Act, 1982, the trial judge issued a declaration under s. 24(1) of the Charterthat the Customs legislation had at times been construed and applied in a manner contrary to ss. 2(b) and 15(1) of the Charter.

10. The remedy problem: Little Sisters Number 2 • In Little Sisters Number 2 - [2007] 1 S.C.R. 38 • The appellant alleged that despite the declaration in Little Sisters Number 1 and the Minister of National Revenue’s assurances to the Court that the appropriate reforms had been implemented, the systemic abuses established in the earlier litigation continued, and that (in its view) Canada Customs had shown itself to be unwilling to administer the Customs legislation fairly and without discrimination.  • Indeed, the chambers judge concluded that Little Sisters had established a prima facie case that the promised reforms had not been implemented. He ordered the government to pay advance costs for the appeal as well as a systemic review of Customs practices • The Court of Appeal set aside the trial judge’s order. • The Supreme Court of Canada upheld the decision of the Court of Appeal.

11. Have the Courts become more lenient with hate speech… • Saskatchewan (Human Rights Commission) v. Bell (c.o.b. Chop Shop Motorcycle Parts), [1994] S.J. No. 380 (C.A.) • a human rights complaint under s. 14 of the Saskatchewan Human RightsCode arising from a situation where Mr. Bell, the owner of a motorcycle shop, had displayed and offered for sale offensive stickers of a Sikh person, an Oriental person and a Black person superimposed with a red circle and a diagonal bar - the not permitted sign. • The Court of Appeal upheld the decision of the trial judge that the stickers violated s.14 of the Code and that s. 14 was a reasonable limit on the right to freedom of expression as allowed under s. 1 of the Charter: • “[The stickers show] the groups depicted to the viewer as being different from the other members of society in a malevolent way, attributing to them undesirable characteristics such as dangerousness, untrustworthiness, lack of cleanliness, lack of emotion, inferior intelligence, dishonesty and deceit. This conclusion comes not only from the evidence of the witnesses, but from the visceral as well as rational effect on the viewer. And all of this is reinforced and driven home by the circle and slash superimposed over the image, the universal symbol for forbidden, not allowed or not wanted. This use of the symbol is insidious. Although the symbol, as used, is ambiguous, it is, nevertheless, a very powerful one: it may be interpreted as advocating anything from mere disapproval of the presence of those depicted to genocide of them.”

12. Or just with hate speech directed against gays and lesbians? • Owens v. Saskatchewan (Human Rights Commission), [2006] S.J. No. 221 (C.A.) • Appeal by Owens from the dismissal of his appeal from a decision of a Board of Inquiry of the Saskatchewan Human Rights Commission that in 1997 he discriminated against three gay males by publishing a newspaper advertisement in connection with gay pride week for bumper stickers which reflected his Biblically-based views about homosexuality. The advertisement included two identical stickmen standing side by side with conjoined hands. A not-permitted symbol was superimposed on the stickmen. The advertisement also contained Biblical passages condemning homosexuality. • Leviticus 20:13 "If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their own heads. • The Saskatchewan Court of Appeal found that the publication of the advertisement, properly considered in its full context, did not offend s. 14(1)(b) of the Code, which was to be applied using an objective approach. • The Bible passages did not violate the Code. “Although bluntly presented and upsetting to many people, the essential message conveyed by the advertisement was not one that involved ardent emotions and strong sense of detestation, calumny, and vilification”.

13. Recent failure in the fight against hatred: Insurmountable HurdlesBoisson v. Lund, 2009 ABQB 592 • Judicial review of a decision of an Alberta human Rights Panel which found that the Appellant and the Concerned Christian Coalition Inc, an organization related to the Appellant had, in a letter to the editor of a newspaper expressed comments likely to expose homosexuals to hatred and/or contempt due to their sexual orientation. • The letter read, in part: • “Come on people, wake up! It’s time to stand together and take whatever steps are necessary to reverse the wickedness that our lethargy has authorized to spawn. Where homosexuality flourishes, all manner of wickedness abounds.” • “Homosexual rights activist and those defending them, are just as immoral as the pedophiles, drug dealers and pimps that plague our communities.”

14. Recent failure in the fight against hatred: Insurmountable HurdlesBoisson v. Lund, 2009 ABQB 592 • The Alberta Court of the Queen’s Bench held: • The interpretation of the Alberta Human Rights legislation question (s. 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act), required that the message of alleged hate be connected to the likely perpetration of acts of discrimination listed in the Act eg denial of equal opportunity in the provisions of goods, services, accommodations, employment, etc. • Note that subparagraph 3(1)(b) of the Act in fact reads: • “No person shall publish…or cause to be published … before the public any statement … that … is likely to expose a person or a class of persons to hatred or contempt because of the … sexual orientation … of that person or class of persons” • “[I]nferring some sort of call for discriminatory practices prohibited by provincial law is an unreasonable interpretation of the letter’s message

15. A ray of hope: Ward v. British Columbia • Going to SCC next year and may shed some light on damages for Charter breaches. • In 2002, Mr. Ward was arrested and detained for over four hours by the Vancouver police. The police had wrongly identified him as a suspect in a plot to throw a pie at former Prime Minister Jean Chrétien. • The BC Supreme Court held that Mr. Ward’s rights under ss. 7 and 9 of the Charter were infringed as a result of his wrongful imprisonment, his strip search and the unreasonable search and seizure of his vehicle. The province was ordered to pay: • $100 for the unreasonable search of his car; • $5,000 for false imprisonment; and • $5,000 in damages stemming from the strip search. • The BC Court of Appeal upheld the decision of the trial judge.

16. Concluding Thoughts • Canadian class actions have yet to overcome hate problems in the same way as American class actions, with the exception of Hislop • Class actions can be a powerful and effective tool and would be useful in a fight against hatred. They could level the playing field and provide access to justice. • This will only work in 2 scenarios: • Cases where a more flexible approach is taken towards financial remedies to hatred; OR • Where legal clinics / NGOs partner with the class action bar to obtain structural injunctions (i.e. Doucet‑Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3) or other similar remedies