Transcript Little Sisters Number 1 In Little Sisters Number 1

FIGHTING BACK
Combatting Hatred Using Class Proceedings
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
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.
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 samesex partners.
• The class action process worked.
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 below
and 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)
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.”
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.”
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.
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 Charter that the Customs legislation had at times
been construed and applied in a manner contrary to ss.
2(b) and 15(1) of the Charter.
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.
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 Rights Code
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.”
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 Biblicallybased 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”.
Recent failure in the fight against hatred:
Insurmountable Hurdles
Boisson 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.”
Recent failure in the fight against hatred:
Insurmountable Hurdles
Boisson 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
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.
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:
(1) Cases where a more flexible approach is taken towards
financial remedies to hatred; OR
(2) 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