COMMENT
COMMENTAIRE
Shutting the Gate:
Gay Civil Rights in the Supreme Court of Canada
Jeff Richstone* and J. Stuart Russell**
Introduction
In the 1970s only two provincial human rights cases reached the
Supreme Court of Canada: ‘Bell v. Ontario Human Rights Commission’
and Gay Alliance Toward Equality v. The Vancouver Sun.2 Observers who
had hoped the Court would redeem itself and reverse the narrow
interpretation given the Canadian Bill of Rights3 since R. v. Dr bones4 were
disappointed with both decisions. Instead of providing guidance to
provincial boards and courts grappling with the issues arising from recent
civil rights legislation, the Court summarily dismissed the complaints of
discrimination presented to it.
In Bell, a unanimous Court confirmed the granting of a writ of
prohibition against a board of inquiry set up under The Ontario Human
Rights Code.5 It chose to adopt a forced and narrow interpretation of the
words “self-contained dwelling unit” that appeared in the statute, 6 thus
denying the board the opportunity of entertaining the issue by hastily
characterizing it as jurisdictional. Recent decisions issued by provincial
appellate courts and the Supreme Court of Canada have, however, tended to
* Of the Bar of Qu6bec
**LL.B. IV, McGill University.
1981, Jeff Richstone and J. Stuart Russell.
‘[ 1971 ] S.C.R. 756, 18 D.L.R. (3d) I per Martland J. See also Ct6, La Belle affaire que
l’affaire Bell (1972) 7 R.J.T. 403; Hunter, Human Rights in Canada: Its Origin,
Development and Interpretation (1976) 15 U.W.O.L. Rev. 21.
2[ 1979] 2 S.C.R. 435, 97 D.L.R. (3d) 577, 10 B.C.L.R. 257,27 N.R. 117 [hereinafter
GATE, cited to S.C.R. ].
3 R.S.C. 1970, App. III.
4[ 1970] S.C.R. 282. The relevant cases on the Canadian Bill of Rights after DrYbones
are: Attorney’-General of Canada v. Canard [ 1976] 1 S.C.R. 170; Atlorney’- General of
Canada v. Lavell [ 1974] S.C.R. 1349; R. v. Smthe [ 1971 ] S.C.R. 680: R. v. Burnshine
[ 1975 ] I S.C.R. 693; MacKa’ v. The Queen (1980) 114 D.L.R. (3d) 393 (S.C.C.). See also
W. TarnopoIsky, The Canadian Bill of Rights, 2d rev. ed. (1975) ; P. Hogg, Constitutional
Law of Canada (1977), 431 et seq.
5 R.S.O. 1970, c. 318 (as am.).
6 S. 3 (b).
1981]
COMMENTAIRE
defer to administrative
determine the policy issues entrusted to them by the legislature. 7
tribunals, allowing them greater latitude
to
Considering that the issue of gay civil rights is still viewed by many as
highly controversial,7ait is not surprising that courts have been wary of being
thrust into the debate. Throughout the last decade, the United States
Supreme Court denied certiorari in all gay rights cases in which review was
sought. 8 Given the timorousness exhibited by its American counterpart, it is
not surprising that the Supreme Court of Canada should decide to deny a
gay liberation newspaper the remedies afforded by the Human Rights Code
of British Columbia.9
The potential consequences of GA TEdo not, however, merely involve a
setback for gay rights groups seeking to gain legal acceptance of homosexu-
ality within Canadian society. The decision represents a dangerous precedent
in the area of human rights: its effects may seriously curtail access to civil
ights remedies for a broad range of persons complaining of discrimination.
I. The Factual Background
The Gay Alliance Toward Equality (G.A.T.E.) was a non-profit gay
rights organization based in Vancouver. l0 On 23 October 1974 Maurice
that an advertisement promoting
Flood,
subscriptions to its newspaper appear in The Vancouver Sun’s classified
advertising section.’] The advertisement read as follows:
its chairperson, requested
Subs. to GAY TIDE, gay lib paper. $1.00 for 6 issues. 2146 Yew St., Vancouver.
The newspaper refused to publish the advertisement, stating that it “was
not acceptable for publication in this newspaper”.12 Attempts to have The Sun
7 See, e.g., Re CIP Products Ltdand Saskatchewan Human Rights Commission (1978) 87
D.L.R. (3d) 609 (Sask. C.A.) and Heustis v. N.B. Electric Power Commission [1979] 2
S.C.R. 768. Judicial deference to human rights tribunals has been further emphasized by
Thurlow A.C.J. (as he then was) in A ttorney’- General of Canadav. Cumming[ 1980 ]2 F.C.
122 (T.D.).
7aE.g., R v. Fraser (1980) 20 A.R. 33, 59, per McDermid J.A. (dissenting).
8 See, e.g., Doe v. Commonwealth ‘s Attorney 425 U.S. 901 (1976); Singer v. U.S. Civil
Service Commission 97 S. Ct 725 (1977) ; Ratchfordv. Gay Lib 98 S. Ct 1276 (1978); Enslin
v. Walford 98 S. Ct 2257 (1978). Most denials were accompanied by strong dissents from
those members who wished to grant review.
9S.B.C 1973 c. 119 (as am.); now R.S.B.C. 1979, c. 186.
10 The group’s aims were stated to be that homosexuality is a “valid and legitimate form of
human sexual and emotional expression, in no way harmful to society or the individual, and
completely on par with heterosexuality”. Transcript of proceedings before the Board of
Inquiry, 28 February 1975; direct examination of Mr Maurice Flood, Joint Record
(GATE), 52.
1 The facts are taken substantially from the judgment of Laskin C.J.C., supra, note 2, 441
et seq.
12 Ibid., 441-2.
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reconsider the rejection failed, and a complaint was filed with the B.C.
Human Rights Commission pursuant to s. 3 of the B.C. Human Rights
Code.13 The section read as follows:
3. (1) No person shall
(a) deny to any person or class of persons any accommodation, service, or facility
customarili available to the public; or
(b) discriminate against any person or class of persons with respect to any
accommodation, service, or facility customarily available to the public, unless
reasonable cause exists for such denial or discrimination.
(2) For the purposes of subsection (I),
(a) the race, religion, colour, ancestry or place of origin of any person or class of
persons shall not constitute reasonable cause; and
(b) the sex of any person shall not constitute reasonable cause unless it relates to the
maintenance of public decency. 4
The Director of the Commission failed to settle the dispute, 15 and the case
was referred to the Minister of Labour, who appointed a board of inquiry
pursuant to s. 16 (1) of the B.C. Code.
The Sun made three arguments before the Board:
(1) That homosexuality is offensive to public decency and that the advertisement
would offend some of its subscribers ;
(2) That the Code of Advertising Standards, a Code of Advertising Ethics subscribed
to by most of the daily newspapers in Canada includes the following section:
“Public decency –
which is vulgar, suggestive or in any way offensive to public decency.”
no advertisement shall be prepared, or be knowingly accepted
and that the advertisement in question did not conform to the standard therein set out,
and
(3) That the Appellant newspaperhad a duty to protect the morals of the community. 16
A hearing was convened on 28 February 197517 before a five member board.
Counsel for G.A.T.E. presented both Kathleen Ruff, director of the Human
Rights Branch of the Commission and Maurice Flood, a representative of
G.A.T.E., as witnesses. The Sun was represented by John Toogood, its
Director of Marketing and Advertising.
After hearing evidence, the Board of Inquiry unanimously held that
there had been a violation of s. 3 (1) of the Code. It therefore ordered The
Sun to make its classified advertising section available to G.A.T.E., and to
refrain from committing the same or similar contraventions in the future.
13R.S.B.C. 1979, c. 186.
14 [ Emphasis added. ] Note that “sexual orientation” is absent from s. 3 (2) (a) of the
Code. Section 3 (2) (b) was amended by S.B.C. 1974, c. 114, s. 6 (a), which added the words
“or to the determination of premiums or benefits under contracts of insurance” after the
word “decency”.
15Pursuant to s. 15 of the B.C. Human Rights Code.
16Stated Case by the Board of Inquiry, 25 February 1976, Joint Record, 10 et seq. Cited by
Laskin C.J.C., supra, note 2, 443.
17 Joint Record (GATE), 30 et seq.
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COMMENT
The principal finding of the Board, which became the focus of considerable
argument before the appellate courts, reads as follows:
Assessing all the evidence offered on the question of the cause or motivation behind the
Appellant’s refusal to publish the Respondent’s advertisement, the majority of the
Board of Inquiry found the inevitable conclusion to be that the real reason behind the
policy was not a concern for any standard of public decency, but was, in fact, a personal
bias against homosexuals and homosexuality on the part of various individuals within
the management of the Appellant newspaper. Board member Dr. Dorothy Smith
dissented on this point and held that there was no evidence whatsoever on which the
Board could make such a finding; and that, in particular there was no evidence to rebut
the Appellants repeated statements that its policy was predicated on a desire to protect
a reasonable standard of decency and good taste. 18
The Sun appealed to the Supreme Court of British Columbia by way of
stated case, pursuant to s. 18 of the Code. 19 Three questions were submitted
for determination:
I. Was the Board of Inquiry correct in law in holding that pursuant to Section 3 (1) of
the Human Rights Code of British Columbia that classified advertising was a service or
facility customarily available to the public?
2. Was the Board of Inquiry correct in law in holding that the Appellant herein denied
to any person or class of persons any accommodation, service or facility customarily
available to the public pursuant to Section 3 (1) of the Human Rights Code of British
Columbia?
3. Was the Board of Inquiry correct in law in holding that pursuant to Section 3 (1) of
the Human Rights Code of British Columbia that the Appellant herein did not have
reasonable cause for the alleged discrimination TO
The Sun relied solely on its third submission before MacDonald J., who
dismissed the appeal. 21
The Court held that the issue of reasonable cause was “purely a question
of fact”, 22 completely within the Board of Inquiry’s jurisdiction and outside
the scope of appeal by way of stated case. In MacDonald J.’s view, The Sun
was separating certain legal elements from the factual circumstances of the
case and asking the court. to find that, as a matter of law, they constituted
reasonable cause. This represented “an invasion of the area of fact”.23
1s Ibid., 1I. Cited by Laskin C.J.C., supra, note 2, 443. The dissent of Board member Dr
Dorothy Smith did not affect her concurrence in the result of the majority.
19 R.S.B.C. 1979, c. 186, s. 18 allows for an appeal on the following grounds: “An appeal
lies from a decision of a board of inquiry to the Supreme Court on any (a) point or question
of law or jurisprudence; or (b) finding of fact necessary to establish its jurisdiction that is
manifestly incorrect…”.
20Joint Record (GATE), 12. Cited by Laskin C.J.C., supra, note 2, 440-1.
21 The Vancouver Sun v. Gay Alliance Toward Equality, 16 August 1976 (unreported).
The Reasons for Judgment of Mr Justice MacDonald are contained in the Joint Record at
185 et seq., and digested in [ 1976] W.W.D. 160 (B.C.S.C.).
2 2Joint Record (GATE), 187.
23 Ibid., 188.
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Consequently, “no legal basis for interfering with the finding of fact was
shown”. 24
A further appeal by The Sun to the British Columbia Court of Appeal
was allowed.2 5 Mr Justice Branca enunciated the startling proposition that a
bias against homosexuals, if honestly held by the newspaper, constituted
“reasonable cause” under s. 3 of the Code unless there was bad faith.26 The
rationale for his view is contained in the following passage:
I am of opinion, that in justice, a bias motivated because of the belief of some people
that the homosexual engages in unnatural practices or that their sexual practices are
immoral or against religions does not make the conclusion wrong, in the sense that it is
unreasonable. 27
Robertson J.A. concurred and added that a newspaper owner’s fear that
publication of an advertisement promoting a gay rights group might lead to
a loss of readers was enough to constitute “reasonable cause” under the
Code.28
In his dissenting opinion, Seaton J.A. stated that The Sun’s attack on the
Board’s decision centered solely on what constituted “reasonable cause”.
Since this was pre-eminently a question of fact, it was outside an appellate
court’s jurisdiction on an appeal by stated case. Seaton J.A. refused to
disturb the findings of the Board on the spurious ground, advanced by the
Court majority, that it had misapplied a “subjective” analysis of reasonable
cause for a supposed “objective” test, i.e., “honest bias”. 29
II. The Decisions of the Supreme Court of Canada
Three opinions were delivered by the Supreme Court of Canada: the
majority decision by Mr Justice Martland with Ritchie, Spence, Pigeon,
Beetz and Pratte JJ. concurring ; and two dissenting opinions, one by Chief
Justice Laskin, the other by Mr Justice Dickson, with Estey J. concurring.
Comparison of the three judgments reveals that there were considerable
perceptual differences among the members of the Court concerning the
principal issues in the case.
In his brief majority opinion, Martland J. pointed out that the
“questions of law” as stated
24 Ibid.
2 Re Vancouver Sun and Gay Alliance Toward Equality (1977) 77 D.L.R. (3d) 487
(B.C.C.A.).
26 Ibid., 495.
27 Ibid., 494.
28 Ibid., 496. See also B. C. Forest Products Ltdv. Foster and Ruff(1979) 16 B.C.L.R. 203,
208 (B.C.S.C.)
29 Ibid., 499 et seq.
19811
COMMENTAIRE
raise a serious issue as to the extent to which the discretion of a newspaper publisher to
determine what he wishes to publish in his newspaper has been curtailed by the Human
Rights Code.30
He cited a decision of the United States Supreme Court in which the High
Court declared a Florida statute providing equal space to a political
candidate, to answer criticisms of his or her record by a newspaper, offensive
of the First Amendment. 3’ Similar legislation, according to Martland J., had
appeared before the Canadian Supreme Court in Reference Re Alberta
Statutes.32 He noted that the freedom of the press is recognized by s. 1 (f) of
the Canadian Bill of Rights.33
The opinion then set out the issue which arose from the appeal, tb be
“whether s. 3 of the [ Human Rights Code] is to be construed as purporting
to limit [freedom of the press ]”.34 It should be recognized that no discussion
of this issue had been raised in any of the B.C. Courts. Martland J. then
proceeded to interpret the words “accommodation, service, or facility…
customarily available to the public” in s. 3 of the Code. He held that
“accommodation”
refers to hotels, inns and motels, “service” includes
restaurants, bars, taverns, service stations, public transportation and public
utilities and “facility” refers to public parks and recreational facilities. These
items, which do not include newspapers or their classified advertising
section; are all “customarily available to the public”. 35
The learned justice found significant the fact that The Sun had reserved
the right to revise, edit, classify or reject any advertisement received, and had
printed this reservation daily at the head of the classified advertising section.
Martland J. went on to state that the freedom of the press to disseminate
its views and ideas carried with it the corollary that a newspaper has the right
to refuse to print material with which it does not agree. He mentioned that
the minority opinions of Duff C.J.C., Davis and Cannon JJ. in the Alberta
Press case “suggest that provincial legislation to compel such publication
ma. be unconstitutional”. 36
In the case of the advertisement in question, the majority held that the
refusal to publish it was predicated upon the content of the advertisement
only, and not upon the personal characteristic of the person seeking to place
that advertisement. The Board had erred in law, since s. 3 of the Code obli-
gated The Sun to make a service available to anyone wishing to use it, but did
30 Supra, note 2, 453.
31 Miami Herald Publishing Co. v. Tornillo 418 U.S. 241 (1974).
32 [1938] S.C.R. 100,2 D.L.R. 81; affd[ 1939] A.C. 117 (P.C.) [ hereinafter the Alberta
Press case, cited to S.C.R.].
33R.S.C. 1970, App. III.
34 Supra, note 2, 454.
35 Ibid., 454-5.
36 Ibid., 455 [emphasis added].
McGILL LAW JOURNAL
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not purport to dictate to a newspaper the nature and scope of the service, i.e.,
what is to be printed.
Laskin C.J.C. dissented principally on the basis of administrative law
considerations. He viewed The Sun’s appeal by way of stated case from the
B.C. Board’s decision as procedurally unsound.He agreed with the B.C.
Supreme Court and Seaton J.A. in the Court of Appeal that the Board’s
determination that no “reasonable cause” for discrimination existed was a
conclusion of fact, or, at best, of mixed fact and law. 37 The Chief Justice said
the flaw in the majority judgment of the Court of Appeal was that the judges
had directly substituted their own notions of reasonable cause for those of
the Board. This was improper, given the limited jurisdiction afforded
appellate tribunals under s. 18 of the Code.38
The Chief Justice also considered The Sun’s submission that its refusal
was reasonable, or, at least, permissible under the Code, as it was not based
on the characteristics of the member of the public seeking its services. The
Chief Justice viewed this argument as
a desperate one, seeking to circumvent the question of reasonable cause, which is the
only question to be decided once it is determined that a service or facility customarily
available to the public has been denied to a person, whatever be his attributes. The
attributes or characteristics may themselves provide reasonable grounds for refusal (so
long as they do not fall within s. 3 (2) of the Human Rights Code) and, if not, there may
be transcending grounds that may afford reasonable cause.., by excluding everything
except a consideration of a complainant’s characteristics or attributes. That flies in the
face of the Human Rights Code and in the face of the plain words of s. 3. There is no
limitation to personal characteristics or attributes.3 9
Finally, Laskin C.J.C. noted that though some reference was made to
the constitutional status of the press, discussion of the issue was precluded
due to the lack of proper notice to the Attorneys-General of B.C. and of
Canada.
Mr Justice Dickson delivered a lengthy and scholarly opinion which
thoroughly canvassed
the relevant British, American and Canadian
authorities dealing with the relations and responsibilities of the press to the
general public. The underlying policy issues presented by the appeal were
seriously and critically examined.
The dissenting justice first discussed a “unique” feature of the B.C. Code.
While most provincial human rights codes contain an enumeration of
proscribed forms of discrimination, the B.C. Code leaves the arena of
proscribed discrimination open. Certain specified classifications are,
however, automatically treated as “unreasonable”, whereas others call for
the more relaxed standard of “reasonable cause”. The learned justice
37 Ibid., 444.
38 Supra, note 19.
39 Supra, note 2, 447-8.
1981]
COMMENT
concluded his analysis of the B.C. Code by stating that the mere absence of
“sexual orientation” from s. 3 is not presumptive of the rights of homosexuals
under the Code. Rather, the question turns on what constitutes “reasonable
cause” in the circumstances of each case, an analysis of which involves
“objective” considerations. 40
Dickson J. also discussed the role of newspapers in society. At common
law a newspaper has full control over the contents of what it chooses to print,
unfettered by legislative or constitutional constraints. In Canada and Great
Britain there is no constitutional guarantee of the freedom of the press, yet
the widely-cited comments of two Supreme Court justices in the Alberta
Press case signify a general acceptance of the imperatives of a free press
predicated on the need for free public discussion of all affairs which concern
the public interest.41
American case law, with its strong First Amendment underpinning,
afforded Mr Justice Dickson two more elements to be considered: (1) that
American law protects “commercial” speech equally with “political” speech,
for purposes of First Amendment scrutiny, and (2) that no right of free
public access to the press can be constitutionally mandated. Drawing on
that
recent American
Canadian legislators and judiciary, unhampered by a strong constitutional
guarantee of press freedom, are more willing to permit a certain regulation of
newspapers.42
justice concluded
jurisprudence,
the
learned
He then drew a distinction between editorial policy and content on the
one hand, and commercial advertising on the other. For purposes of
ensuring free public discussion of matters of concern, the editorial policy and
40 Ibid., 460-1.
41 Ibid., 463-5.
42 Ibid., 462 et seq. Mr Justice Dickson cited Kellett, Right of Publisher of Newspaper or
Magazine, in Absence of Contractual Obligation, to Refuse Publication of Advertisement,
18 A.L.R. 3d 1286, 1287-8. At p. 1291 of this Annotation we find the following illuminating
remarks: “Although recognizing that there may come a time when the courts modify or
alter the established common law rules applicable to newspapers, or when regulations are
applied b’v statutes, the court in Bloss v. Federated Publications, Inc. 5 Mich. App. 94, 145
N.W. 2800 (1966), referred to the recognition by our founding fathers, in the First
Amendment, of the importance of an independent press for the preservation of democratic
institutions through well-informed citizens, concluded that the public interest demanded
that the press remain independent, and affirmed a summary judgment in favour of a
newspaper publisher charged with refusing to accept and publish advertisements for ‘adult
movies”‘ [emphasis added]. A publisher is entitled to refrain from selling advertising to
those it deems undesirable: Camp-of-the-Pines, Inc. v. New York Times Co. 53 N.Y.S. 2d
475 (Sup. Ct 1945). Furthermore, in the absence of legislative regulation, the publisher is not
required to publish an advertisement. It is submitted that such legislative or statutory
regulation exists in B.C. by virtue of s. 3 of the Human Rights Code, supra, note 9 ; therefore
the broad common law right of newspaper publishers andeditors to refuse to publish
advertisements must be circumscribed accordingly.
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contents of a newspaper deserve judicial protection. Once services or
facilities are provided to the public through the classified advertising section
of the newspaper, the public interest demands that another goal be given
priority –
that of ensuring the non-discriminatory treatment of all sectors
of society in the provision of a commercial service or facility “customarily
available to the public”. In this latter context, the demands of the Human
Rights Code are met.
to have
Finally, Dickson J. considered the circumstances of the case at bar. The
Respondent newspaper appeared
two policies concerning
homosexuality. The editorial department did not refuse to print matter
concerning homosexuals. But the advertising department was concerned not
to offend its readers and refused to print anything that dealt with
homosexuals or homosexuality. The B.C. Board of Inquiry had found, as a
matter of fact, that the grounds advanced by The Sun did not afford it rea-
sonable cause to refuse the advertisement in question. To overturn the
Board’s decision, and hold that publication of the advertisement would
indeed have a major impact on its way of conducting business, would be to
substitute directly new findings of fact for those found by the Board, a
procedure forbidden to the superior courts by s. 18 of the Code.
Having concluded that The Sun’s appeal to the B.C. Supreme Court and
Court of Appeal was not validly taken, Mr Justice Dickson summarily
dismissed several issues which formed the ratio of the Supreme Court
majority. He noted that no constitutional challenge was mounted with
respect to the scope of provincial legislative power to regulate newspapers.
With regard to The Sun’s published statement, reserving to itself the right to
edit, classify or refuse an advertisement, his comments were brief but telling:
I would only add in concluding that I do not think a newspaper, orany other institution
or business providing a service to the public, can insulate itself from human rights
legislation by relying upon “honest” bias, or upon a statement of policy which reserves
to the proprietor the right to decide whom he shall serve. 43
11. Analysis of the Supreme Court decisions
The failure of the majority opinion to address the fundamental issues
posed by the case is of great significance, due to its potential impact on future
judgments dealing with provincial human rights statutes. Certain major
procedural errors made by the majority must be considered.
First, it is a curious feature of Martland J.’s majority judgment that his
reasoning focusses on issues that were summarily dismissed in the dissenting
opinions of the Chief Justice and Mr Justice Dickson. Provincial
competence over the newspaper business, a subject alluded to and developed
by the majority, was not considered by the dissenting justices, due to the lack
43 Supra, note 2, 473.
1981]
COMMENTAIRE
of proper notice to the Attorneys-General of B.C. and Canada. In fact,
during the hearing before the Court, no specific challenge was made by The
Sun against the validity or operability of the Code with respect to the press.
Secondly, the argument on appeal centered, as it did before the B.C.
Courts, on the third question in the stated case –
that of reasonable cause.
The Sun did not pursue in any of the courts its submission that the service or
facility it provided did not fall within the scope of s. 3. In fact, it seems that
even the B.C. Court of Appeal was unsure whether the argument could be
made at all.44
Finally, The Sun’s submission that the Code proscribed discrimination
against the personal attributes of the member of the public seeking the
service, and not against the idea that member espouses, was one raised for
the first time before the Supreme Court.
It will be seen at once that Martland J. anchored his opinion on all three
elements. The Sun did not refuse access to G.A.T.E. on the basis of the
personal characteristics of its chairperson, but because of the content of the
advertisement G.A.T.E. wished to place. The Sun did not allow the public
unrestricted access to its advertising section ; the service or facility it was
providing carried with it a reservation of its rights to revise, edit or refuse the
advertisement. And finally, The Sun’s right to revise, edit or refuse had
something of a constitutional basis.
Yet we might question the propriety of the majority in reaching these
conclusions. No procedure had been effected to invite comment by the
Attorney-General of B.C. on the applicability of s. 3 of the Code to
newspapers. For Laskin C.J.C., this absence was fatal. Nonetheless, the
majority saw fit to discuss the issue, although it had not been explored at the
hearing, let alone before any of the B.C. courts. Furthermore, there is good
authority for the proposition that the question whether a given set of facts
can be embraced by the words of a statute, is not to be considered a question
of law.45 The Sun’s first question in the stated case, on the applicability of
s. 3 (1) to its advertising columns, could not then engage consideration by a
court of law ; s. 18 (a) of the Code rules out any attack except on questions of
law alone. Whether or not The Sun’s advertising service was offered to the
44 Re Vancouver Sun and Ga. Alliance Towards Equality, supra, note 25, 495per Branca
J.A. and 499 per Robertson J.A.
45 In R. v. Parkway Chrysler Plymouth Ltd(1976) 28 C.P.R. (2d) 15 (Ont. C.A.), the Court
reaffirmed the well-known distinction that while the construction of the words of a statute
raises a question of law, whether the particular matter or thing is of such a nature or kind as
to fall within the legal definition is a question of fact. The Court cited as authorities Re
McIntyre Porcupines Mines Ltd and Morgan (1921) 49 O.L.R. 214 (Ont. S.C., App. Div.);
Elliott v. South Devon Rwy Co. (1848) 154 E.R. 682 (Ex.); Attorney-General for
Dominion of Canada v. Ritchie Contracting and Supply Co. [1919] A.C. 999 (P.C.);
Ciglen v. The Queen [ 1970] S.C.R. 804.
McGILL LAW JOURNAL
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public on a truncated basis was not a question the Supreme Court was
permitted to answer, since its jurisdiction is limited to interpreting pure
questions of law.
Finally, one might question the willingness of the majority to consider
these issues, which were not pursued in any of the tribunals below. A recent
decision of the Ontario Court of Appeal, Shaver Hospitalfor Chest Diseases
v. Slesa, 46 held that a court of appeal should not entertain an issue which
had been neither pleaded, nor developed, nor pursued at trial. This is based
on considerations of fairness to the other party:
It would be manifestly unfair to the respondent to allow the appellant to argue a point
which was not raised at the trial at a time when relevant evidence bearing on it could
have been introduced. 47
It is not difficult to understand why the dissenting opinions attend to
issues left unspoken by the majority. The reasoning of Martland J. is based
solely on arguments neither raised, nor pursued in any of the judgments a
quo. This practice would seem to be at variance with actual procedures of
appellate courts, and contrary to the practice of the Supreme Court itself.48
The majority judgment can also be criticized for its handling of the
substantive legal issues raised by the appeal.
For example, Martland J.’s discussions of the freedom of the press will
confuse most Court observers. The majority was willing to treat the matter as
if the Canadian Bill of Rights with its specific inclusion of the freedom of the
press within its catalogue of protected freedoms, applied to the B.C. Human
Rights Code. An almost identical majority had, however, declared a year
earlier in Attorney- General of Canada and Dupond v. Montrdal that the
federal Bill of Rights did not apply to provincial statutes. 49 The Dupond
Court also declared that the fundamental freedoms, including the freedom of
the press, were a matter over which the federal and provincial powers had
concurrent jurisdiction.50 Yet Martland J. said in GA TE, with the
concurrence of nearly the same justices who formed the majority in Dupond,
that “provincial legislation to compel… publication may be unconstitu-
tional”.5′ The minority judgments of the Court in the Alberta Press case were
46(1979) 27 O.R. (2d) 383. See, in particular, the case law reviewed at p. 386 et seq.
47 Ibid., 389.
48It is interesting to note that in Attorney-General of Canada and Dupond v. Ville de
Montrdal [ 1978 ] 2 S.C.R. 770 [ hereinafter Dupond], the Appellant Claire Dupond made
submissions in her factum which were not made in her oral argument. Beetz J. consequently
dismissed them in the following unequivocal terms at p. 789: “Since they were not argued in
this Court nor discussed by the Courts below, I will refrain from commenting upon them.”
49 Ibid., 798.
50 Ibid., 796-7.
51 Supra, note 2, 455. In Dupond, supra, note 48, 798, Beetz J. correctly stated the law as
follows: “The Canadian Bill of Rights… does not apply to provincial and municipal
legislation.” See also Maloney, The Supreme Court of Canada and CivilLiberties( 1975-76)
18 Crim. L.Q. 202.
19811
COMMENT
the only authority cited for this surprising statement. Examination of the
opinions of Duff C.J.C., Cannon and Davis JJ. in that case do not support
the sweeping claims of the majority in GA TE. On the contrary, thejudgment
in that case shows that the minority was concerned with legislation of a
rather different order. The Alberta statute contemplated mandatory
publication, at the instance of the provincial government, of a statement
which would be a correction or amplification of any prior statement printed
by the newspaper relating to government policy or activity. Further, the
newspaper editor could be forced to divulge any source of information upon
which the statement appearing in his newspaper was based.
It was in the context of this legislation that Chief Justice Duff could say:
Some degree of regulation of newspapers everybody would concede to the provinces.
Indeed, there is a very wide field in which the provinces undoubtedly are invested with
legislative authority over newspapers ; but the limit, in our opinion, is reached when the
legislation effects such a curtailment of the exercise of the right of public discussion as
substantially to interfere with the working of the parliamentary institutions of Canada
as contemplated by the provisions of The British North America Act and the statutes of
the Dominion of Canada.52
Little imagination is required to see that the Alberta statute imperilling
fundamental freedoms, and a human rights code anchoring the same
freedoms, ought to trigger very different legal responses. Even within the
concurring opinion in the Alberta Press case we see affirmed, as a matter of
course, some degree of provincial regulation over the newspaper business.
Perhaps it was-because of the inherent frailty of this Supreme Court
precedent that the GATE majority felt obliged to turn to its American
counterpart for support. Yet Miami Herald Publishing Co. v. Tornilo53
cannot be used for the purposes assigned to it by Martland J. The Florida
statute sought to interfere with editorial control and policy; it was on this
ground that the United States Supreme Court held the provision to be
unconstitutional. But the decision does not deal with the newspaper’s
advertising service. As the concurring reasons of White J. reveal, the statute
offended the First Amendment because the state
may not force a newspaper to print copy which, in its journalistic discretion, it chooses
to leave on the newsroom floor… [W]e have never thought that the First Amendment
permitted public officials to dictate to the press the contents of its news columns or the
slant of its editorials.54
52 Alberta Press, supra, note 32, 134-5.
53Supra, note 3 1.
54Ibid., 261. Subsequent lower court decisions have split on the question of the
applicability of Miami Herald to advertising. See Fitzgerald v. National Rifle Assoc. of
America 383 F. Supp. 162, 166 (D. D.N.J. 1974) ; Gore Newspapers Co. v. Shevin 397 F.
Supp. 1253, 1257 (D. S.D.Fla. 1975); Person and Thee v. New York Post Corp. 427 F.
Supp. 1297 (D. E.D.N.Y. 1977) (advertising protected); New York Times Co. v. City of
N.Y. Commission on Human Rights 362 N.Y.S. 2d 321 (Sup. Ct 1974), affd374N.Y.S.2d9
REVUE DE DROIT DE McGILL
[Vol. 27
The carefully wrought distinction made by Dickson J. between editorial
control and advertising services seems to silence effectively the majority’s
complaint that the Code interferes with free public debate and press
freedom. The Supreme Court should not have allowed The Sun this
constitutional shelter without making a greater effort to justify the basis of
this right.
The significance of this new-found constitutional guarantee is unclear.
The Court might be saying that newspapers are constitutionally immune to
provincial human rights legislation. Should this be so, it cannot be reconciled
with the ratio in Dupond. The Majority’s inability to face the constitutional
dilemma posed by its assumption that press freedom is a protected right
creates serious analytical problems. One should like to know how, on sound
legal principles, the Supreme Court may deny provincial competence over
fundamental freedoms in this instance, when it was quite willing to validate
provincial competence to control civil liberties a year earlier.
The same uncertainty surrounds the majority’s apparent willingness to
affirm freedom of the press to control what it publishes, when it is
remembered that six months prior to its decision in GA TE the same Court
majority (with the addition of Laskin C.J.C.) handed down a decision which
seems at first glance contrary to such press freedom. In Cherneskey v.
Armadale Publishers Ltd 55 the Court held that in a libel suit, the defence of
“fair comment” is not available to the newspaper publisher who prints a
letter in his “Letters to the Editor” column unless he can prove the letter is his
honest expression of the matters contained therein.
Mr Justice Dickson, who wrote the dissenting opinion (concurred in by
Spence and Estey JJ.), was quick to see the danger to press freedom in the
majority stance:
Newspapers will not to be able to provide a forum for dissemination of ideas if they are
limited to publishing opinions with which they agree. If editors are faced with the choice
of publishing only those letters which espouse their own particular ideology, or being
without defence if sued for defamation, democratic dialogue will be stifled. Healthy
debate will likely be replaced by monotonous repetition of majoritarian ideas and
(App. Div. 1975) (advertising notprotected) ; Mississippi Gay Alliance v. Goudelock 536 F.
2d 1073 (5th Cir. 1976), certiorari denied 430 U.S. 982 (1976); North Jersey Suburbanite
Co. v. New Jersey 381 A. 2d 34 (Super. Ct App. Div. N.J. 1979) (advertising protected);
Triangle Publications Inc. v. Knight-Ridder Newspapers Inc. 445 F. Supp. 875 (D.S.D. Fla.
1978) (protected) ; Newspaper Pinting Corp. v. 6albreath 580 S.W. 2d 777 (Tenn. Sup. Ct
1979) (protected); Wisconsin Association of Nursing Homes Inc. v. Journal Co. 285 N.W.
2d 891 (Wis. Ct. App. 1979) (protected); Allston v. Lewis 480 F. Supp. 328 (D. D.S.C.
1979) (protected); Quinn v. Aetna Life and Casualty Co. 616 F.2d 38 (2d Cir. 1980)
(protected), aff’g 482 F. Supp. 22 (D.E.D.N.Y. 1979); Bates v. State Bar of Arizona 433
U.S. 360 (1977) (protected).
55[1979] I S.C.R. 1067. See also Vander Zalm v. 71mes Publishers (1980) 109 D.L.R.
(3d) 531 (B.C.C.A.).
1981]
COMMENTAIRE
conformity to accepted taste. In one-newspaper towns, of which there are many,
competing ideas will no longer gain access. Readers will be exposed to a single political,
economic and social point of view. In a public controversy, the tendency will be to
suppress those letters with which the editor is not in agreement. This runs directly
counter to the increasing tendency of North American newspapers generally to become
less devoted to the publishers’ opinions and to print without fear or favour, the widest
possible range of opinions on matters of public interest. The integrity of a newspaper
rests not on the publication of letters with which it is in agreement, but rather on the
publication of letters expressing ideas to which it is violently opposed. 56
This decision has been criticized by the media and legal scholars. M. R.
Doody had termed Cherneskey “an unfortunate precedent in our libel laws”
in a case comment.57 The consequences of the decision will inevitably entail
an unwillingness on the part of the newspaper publishers to print anything in
the “Letters to the Editor” column with which they do not themselves agree.
Certain letters which would have been published before Cherneskey will now
be rejected for fear of libel prosecution. It is difficult to understand how the
same Court that was so anxious to preserve free public discussion on matters
of public interest in GA TEwould also restrict vigorous public discussion and
debate in a “Letters to the Editor” column of a newspaper.
Several issues considered by the Court in its treatment of the B.C. Code
call for discussion. Three may be singled out: (1) the discussion of the
meaning of “accommodation, service or facility customarily available to the
public” found in s. 3 (1) of the Code; (2) the distinction between
discrimination based on personal attributes and discrimination based on
ideas; and (3) the notion of reasonable cause.
Martland J. did not accept The Sun’s submission that a newspaper-
advertising service is not a service customarily available to the public. The
learned justice did, however, affirm that since The Sun had reserved the right
to revise, edit or reject any classified advertising tendered to it, and had
published this daily at the head of its section, the service available to the
public was in fact subject to The Sun’s discretion. Justification for this
conclusion can be gleaned from the Code in that s. 3 (1) deals with what is
customarily offered to the public. But there is an obvious danger in
permitting anyone who provides a service to the public to remove him or
herself from the ambit of a human rights code. This feature of the majority
judgment will likely have an important effect on future judicial responses to
human rights legislation: the words “accommodation, service, or facility
customarily available to the public” are found, more or less, in every
56 Ibid., 1097.
57 Doody, Comment (1980) 58 Can. Bar Rev. 174. See also the observations of Bale,
Casting Off the Mooring Ropes of Binding Precedent (1980) 58 Can. Bar Rev. 255,261 et
seq.
McGILL LAW JOURNAL
[Vol. 27
provincial human rights statute dealing with discrimination.5 8 While the
B.C. Code is unique in its open-ended treatment of certain discriminatory
practices, tempered only by notion of “reasonable cause”, this singular
feature dealt with by Dickson J. in dissent was not one which attracted the
majority. Instead, by unduly emphasizing that the word “customarily” in the
statute refers to the way the particular public service has interpreted its
dealings with the public, the Court created a dangerous loophole for anyone
seeking to evade the constraints of the Code.
It does not appear that such a reading of the statute was in fact mandated
by the circumstances of the case. The Sun represented to the Board of
Inquiry that its refusal of G.A.T.E.’s advertisement was dictated by
standards of public decency and good taste. Yet on the day the Gay Tide
advertisement would have appeared had it been accepted for publication,
The Sun printed several advertisements dealing with pornographic films,
along with warnings from the B.C. Film Classification Director indicating
that, in one case, a film contained scenes of “group sex & lesbianism”, that
another was “completely concerned with sex”, and another was described as
an “orgy of sex and violence” complete with “male nudity & sex”. 59 No one
the
at the Board hearing, however, questioned
advertisement which G.A.T.E. tendered. 60 It may be doubted whether The
Sun should have been heard to invoke its advertising policy, faced with its
practice of accepting advertisements of dubious “decency” and “good
taste”. 61
the propriety of
One may reply that this does not squarely attack the logic of Mr Justice
Martland’s position. Whether or not The Sun generally met the same
standards of “public decency” and “good taste” on the basis of which it
rejected the Gay Tide advertisement is not at issue. The question is whether
the B.C. Legislature, in using the word “customarily”, was, not in fact
directing the courts and the Board to determine in each case the actual
practice of the business or enterprise which offers the public its services,
facilities or accommodations. As the majority judgment pointed out, The
Sun reserved itself a right which is decided in this particular case to exercise,
58 Alberta: The Individual’s Rights Protection Act, S.A. 1972, c. 2, s. 3 ; am. 1980, c. 27,s.
2; British Columbia: Human Rights Code, R.S.B.C. 1979, c. 186, s. 3; Manitoba: The
*Human Rights Act, S.M. 1974, c. 65, s. 3 ; am. 1976, c. 48, s. 3 ; am. 1977, c. 46, s.2 ; New
Brunswick: Human Rights Act, R.S.N.B. 1973, c. H-I1, s. 5; am. 1976, c. 31, s. 2;
Newfoundland : Newfoundland Human Rights Code, R.S.N. 1970, c. 262, s.7; The Ontario
Human Rights Code, R.S.O. 1970, c. 318, s. 2; Prince Edward Island: Human Rights Act,
S.P.E.I. 1975, c. 72, s. 2; Quebec: Charter of Human Rights and Freedoms, L.R.Q., c.
C-12, s. 12; Saskatchewan: Saskatchewan Human Rights Code, S.S. 1979,c. S-24.1,ss. 12,
15; Northwest Territories: Fair Practices Ordinance, R.O.N.W.T. 1974, c. F-2, s. 4.
59 See Joint Record (GATE), 78, 119, 123.
60 Ibid., 166.
61 Laskin C.J.C. said as much in his dissent. Supra, note 2, 448.
1981]
COMMENT
“on the controversial subject of homosexuality”. 62 This service could not
then, in any absolute sense, be considered “customarily” accessible to the
public.
American courts, in confronting this problem, have developed an “open
door” doctrine which originated in applying anti-discrimination provisions
to normally private institutions, clubs and enterprises. Once such a private
establishment has opened its doors to the public, the argument runs, it
cannot discriminate as to which members of the public shall be allowed in.
This doctrine was invoked in establishing the right of Norman Rockwell Jr’s
National Socialist Party to use a school hall for the purpose of holding a
rally.63
Such a doctrine may be readily extended to factual situations involved in
s. 3 (1) litigation. Although The Sun had published a reservation of its right
to revise, edit or refuse all advertisements submitted to it, the newspaper had
“opened its doors” to advertisements of films depicting, inter alia, “group sex
& lesbianism” and “male nudity & sex”. It should not have been allowed to
fall back on its classified advertisement policy to discriminate in this case
since “customary” practice belied its stated policy.
Again it may be objected that Mr Justice Martland’s reasoning focussed
as much on The Sun’s reservation of rights as on the content of the
advertisement itself. The newspaper submitted before the Court that
G.A.T.E. had not been subject to discrimination on the basis of the
characteristics of the organization or of its members. The purpose of s. 3 of
the Code, as The Sun saw it, is to prevent discrimination levelled at a person
or class of persons ; it should not be used to prevent every unreasonable
denial or discrimination, especially discrimination against ideas. This
argument was severely criticized by the Chief Justice (here followed by Mr
Justice Dickson) but the majority apparently used it as a major factor in its
decision. For Mr Justice Martland, the Code ensures that where a service is
offered to the public, all sections of the public must be allowed access to it.
The nature and scope of that service, however, fall outside the scope of the
Code. It was in this sense that the learned justice could say that the B.C.
“Board erred in law in considering that s. 3 was applicable in the
circumstances of this case.” 64
A dangerous fallacy resides in this position as well. As the Board noted,
[i]n so far as the policy of the Respondent is directed against advertisements dealing
with homosexuals and homosexuality that policy has resulted in a denial of a service or
62 Ibid., 455-6.
63 See National Socialist White People’s Party v. Ringers473 F. 2d 1010 (4th Cir. 1973). See
also Buckley v. Meng 230 N.Y.S. 2d 924 (Sup. Ct 1962); A CLUv. Bd of Education of Los
Angeles 94 A.L.R. 2d 1259 (Cal. Sup. Ct 1961); Danskin v. San Diego Unified School
District 171 P. 2d 885 (Cal. Sup. Ct 1946).
‘A Supra, note 2, 456 [emphasis added].
REVUE DE DROIT DE McGILL
[Vol. 27
facility customarily made available to the public. The “content” of the advertising is but
a reflection of the subject matter of the paper in question which, in turn, is merely a
reflection of the common purpose of the association. That common purpose, as has
already been stated, is indistinguishable from the common bond of the class of persons
who constitute the association. 65
It is an easy step from discrimination against a person on the basis of his
or her ideas to discrimination against his or her personal characteristics, or
attributes, especially where the ideas are bound up with the attributes of the
person. It is difficult to say with any assurance where discrimination against
the ideas advocated by a cultural or nationalist group shades off into
discrimination against that culture or nation. It seems far better to say, with
Chief Justice Laskin, that the Code provides us with the proper test (outside
the matters covered by s. 3 (2)), i.e., has “reasonable cause” afforded the
person allegedly violating the Code with “transcending grounds” for
adopting his discriminatory stance?66 The majority opinion, on the
contrary, deflects the inquiry into the alleged discrimination onto another
track, i.e., whether the denial or discrimination centres on the nature and
scope of the service offered. The Court had thus drastically restricted the
ambit of the Code, merely to ensure that an accommodation, service or
facility has been offered to the public at large. That their nature and scope is
subject to the ideological whims of the person making them available, is a
situation which the Code is powerless to overcome.
One commentator has postulated that one of the strengths of the
majority opinion in GATE is that it lays to rest the curious analysis of
“reasonable cause” practised by the majority of the B.C. Court of Appeal. 67
All the Supreme Court justices, it is claimed, were quick to see the disturbing
implications of a decision that would confine reasonable cause to an
apprehension of economic loss (per Robertson J.A.), or, worse, to bias
honestly entertained, unless bad faith co-existed (per Branca J.A.). Yet
absolutely no discussion of reasonable cause occurs in the reasons of the
65 Joint Record (GATE), 161.
66 Supra, note 2, 447. In fact, as Professor W. Black points out, if the Code is read as
implying that “reasonable cause” is limited to denials based on personal characteristics, then
“[o]ne could exclude blind people, for example, by forbidding the entry of guide dogs or
even the use of white canes, for even the most unreasonable prohibition would fall outside
the Code if it were not in terms of a personal characteristic. Women and religious minorities
could often be excluded by means of dress requirements. Indeed, with a little ingenuity,
almost any group could be excluded on some basis other than a personal characteristic.”
Black, Comment (1979) 17 Osgoode Hall L.J. 649, 652. See also Proulx, infra, note 90,491
et seq. For further more recent discussion of GATE by human rights tribunals, see Black
United Front v. Bramhill(1980) 2 Can. Human Rights Reporter D/249, D/251 (N.S. Bd of
Inquiry); Jorgensen v. B.C. Ice Cold Storage (1980) 2 Can. Human Rights Reporter
D/289, D/292 et seq. (B.C. Bd of Inquiry); Baile’ v. Minister of National Revenue (1980) 1
Can. Human Rights Reporter D/ 193, D/241 et seq. (Can. Human Rights Tribunal).
67 MacPherson, Developments in Constitutional Law: The 1978-79 Term (1980) 1
Supreme Court L.R. 77, 124.
1981]
COMMENTAIRE
(2)
majority in GA TE. It would have been open to the Court to declare that (1) a
newspaper’s freedom to control what it publishes is a right deserving
its policy against publishing anything
protection;
it was merely exercising a publicly-stated
advocating homosexuality,
prerogative ; and (3) to attempt to curtail this prerogative would not advance
freedom of expression,which is not a “reasonable” result desired by the
Code.
in exercising
interpretation by
The majority ruled, however, that s. 3 had no application to the facts at
hand. This can only mean that “reasonable cause”, a component part of s. 3,
also had no bearing on the question. Thus the meaning of this crucial phrase
remains uncertain and lower courts will not have the guidance of an
the effect that
authoritative
“reasonable cause” is something to be measured against the fact presented by
each particular case, that the test is necessarily objective, and that honest bias
or apprehension of loss of business is not enough, do appear in the dissenting
opinions. The majority of the Supreme Court unfortunately took another
route in dismissing G.A.T.E.’s appeal, and, in so doing, it created a great deal
of confusion concerning the applicability of the Code to public services in
general and to the newspapers in particular.
the Court. Dicta to
IV.
In the Wake of GATE
It is still too early to determine what the real effect of the GA TEdecision
on the lower courts will be. One commentator seems fairly sure that the
opinion will be considered as a “cas d’esp~ce” and will not have too much of
an effect even with respect to the interpretation of the B.C. Code.68 While this
would be rather reassuring, recent case law does reveal that the reasoning of
the Supreme Court majority is being followed.
In Rocca Group Ltd v. Muise,69 a recent decision of the Prince Edward
Island Supreme Court in banco, an appeal was taken from a decision
affirming that a term in a lease did not contravene s. l(1)(d) of the
province’s Human Rights Act.70 The appellant tenant had entered into a
commercial lease with the respondent shopping mall owner. The tenant
agreed, pursuant to a clause of the lease, that he would use the premises only
as a men’s hairstyling salon and barbershop. Other premises in the mall were
let to a women’s hair salon, whose owner had accepted the exclusivity
68 Black, supra, note 66, 649.
69(1979) 22 Nfld. & P.E.I.R. I (P.E.I.S.C.), 102 D.L.R. (3d) 529 per Peake, MacDonald
and Campbell JJ. [ hereinafter cited to D.L.R. ]. Motion for leave to appeal to the Supreme
Court of Canada dismissed on 20 November 1979,per Ritchie, Dickson and BeetzJJ. (1980)
30 N.R. 613.
70Human Rights Act, S.P.E.I. 1975, c. 72. Para.
reads as follows:
“‘discrimination’ means discrimination in relation to the race, religion, creed, color, sex,
marital status, ethnic or national origin or political beliefs as registered under s. 24 of the
Election Act, R.S.P.E.I. 1974, c. E-.”
l(1)(d)
McGILL LAW JOURNAL
[Vol. 27
arrangement. Muise, however, began to cut women’s hair also, and the
owner of the other salon complained. The landlord began eviction
proceedings. 71 The Court was asked to decide whether the Human Rights
Act rendered the exclusivity clause invalid.
The appellant contended that the trial judge had erred in restricting the
meaning of the term “discrimination” to a finding of intent. MacDonald J.,
for the majority, agreed that “intent” played no role in determining a claim of
discrimination. Surprisingly, the learned justice relied in part on the dissent
in GATE as authority:
That intent to discriminate need not be shown to establish discrimination has been
held.., recently in the Supreme Court of Canada in Gay Alliance Toward Equality v.
Vancouver Sun… Dickson, J., stated…
I would only add in concluding that I do not think a newspaper, or any other
institution or business providing a service to the public, can insulate itself from
human rights legislation by relying upon “honest” bias, or upon a statement of
policy which reserves to the proprietor the right to decide whom he shall serve.
While Dickson, J., gave a dissenting judgment the above conclusion, which he reached,
was not a matter upon which the majority expressed any opinion. 72
The judgment went on to hold that “equality of treatment” is the relevant
criterion in determining whether discrimination has occured, in cases where
“a person… has suffered any adverse consequences or has had some affront
to his or her dignity”. 73 Reasonableness was singled out as a crucial factor,
and since “a reasonable woman” would not consider her dignity lowered if
Muise refused to cut her hair, no violation of the Act could be said to occur.74
The P.E.I. Court referred to two related cases decided in Ontario
involving the rights of girls to play on boys’ sports teams.75 The reasoning of
the Divisional Court in Re Cummings and Ontario Minor Hockey’
Association (OMHA) and Re Ontario Rural Softball Association (ORSA)
and Bannerman was approved. 76
71 Pursuant to s. 78 of the Landlord and Tenant Act, R.S.P.E.I. 1974, c. L-7.
72 Supra, note 69, 533.
73 Ibid., 535.
74 Ibid., 536.
75 Re Cummings and Ontario Minor Hockey Association (1978) 21 O.R. (2d) 389 (Div.
Ct),per Evans C.J.H.C. ; Re ORSA and Bannerman (1978) 21 O.R. (2d) 395 (Div. Ct),per
Evans C.J.H.C. In Re ORSA the Divisional Court followed its judgment in Re Cummings,
which involved an appeal from a decision of a board of inquiry holding that the Appellant
Association was in breach of the Code for refusing to permit a girl to play in competitions
sponsored by it. The appeal was allowed on the basis that the Association had a right to limit
the scope of its activities, and a further appeal to the Ontario Court of Appeal was dismissed
on different grounds: (1979) 26 O.R. (2d) 7, (1980) 104 D.L.R. (3d) 434.
761n particular, MacDonald J. cited a passage of the Divisional Court judgment in Re
Cummings where it was concluded that a volunteer organization could legitimately refuse to
provide a service beyond the scope of the undertaking. He stated: “I find it hard to distin-
guish between a volunteer organization, such as the Ontario Minor Hockey Association,
1981]
COMMENT
to
interpret
In both cases
the Court was called upon
the
non-discrimination provision of the Ontario Human Rights Code,77 which
was allegedly offended by the policy of the private sports association not to
allow integration of the sexes in their organized sports teams. A reading of
s. 2 of the Code reveals that the legislature emphasized “the place” at which
the “accommodations, services, or facilities” were made available. 78 It appears
that this is the only provision in Canada which prohibits discrimination with
respect to “private” facilities, services or accommodations, when these are
made available at a public place. The legislative referent in the Ontario Code
is therefore the place and not the nature or kind of service made available. 79
However, the interpretation of Evans C.J.H.C., who wrote the
unanimous opinion of the Divisional Court in Re Cummings and OMHA,
displaced the legislative emphasis on place with a judicial scrutiny of the
nature and kind of service or facility made available.80
Re ORSA and Bannerman, argued at the same time as Re Cummings
and OMHA, was appealed to the Ontario Court of Appeal. Weatherston
and Houlden JJ.A. wrote separate reasons for refusing the appeal of the
Human Rights Commission, and Madame Justice Wilson dissented.8′
Weatherston J.A. did not adopt the construction placed on the statute
by Evans C.J.H.C. in Re Cummings and OMHA. The Ontario Code, he
admitted, directed its target to discrimination carried on in a public place,
notwithstanding the private nature of the activity carried on. The learned
justice believed, however, that the Code ought not to be too literally
being allowed to put restrictions on its membership and a merchant not being allowed to
place the same type of restriction”, supra, note 69, 538. As we have seen this line of reasoning
echoes Martland J. in GATE.
77 R.S.O. 1970, c. 318 (as am.).
7 8 Section 2 (1) reads as follows : “No person, directly or indirectly, alone or with another,
by himself or by the interposition of another, shall, (a) deny to any person or class of persons
the accommodation, services or facilities available in any place to which the public is
customarily admitted ; or (b) discriminate against any person or class of persons with respect
to the accommodation, services or facilities available in any place to which the public is
customarily admitted, because of the race, creed, colour, sex, marital status, nationality,
ancestry or place of origin of such person or class of persons or of any other person or class of
persons.”
79 Certain anomalous results would follow if the facts in GA TEwere viewed in the light of
s. 2 of the Ontario Code. The disposition of the case, for instance, could well have turned on
the place where the advertisement was submitted, i.e., at the offices of The Vancouver Sun
made open to the public, or by telephone, or by mail sent from the private residence of the
applicant. See Black, supra, note 66, 651, n. 10 for this illustration. For another critical
comment on GA TE see Gorham, Comment (1981) 59 Can. Bar Rev. 165.
80 Supra, note 75, 573.
81 Re Ontario Human Rights Commission and Ontario Rural Softball Association (1979)
], affg Re ORSA
26 O.R. (2d) 134 (C.A.), 102 D.L.R. (3d) 303 [hereinafter cited to O..
and Bannerman, supra, note 75. Motion forleave to appeal to the Supreme Court of Canada
dismissed, 3 December 1979 (1980) 31 N.R. 171.
REVUE DE DROIT DE McGILL
[Vol. 27
is no
in GA TE that there
construed. Despite the prima facie violation of ithe Code, Weatherston J.A.
cited Martland J.’s proposition
illegal
discrimination where the description of the service or facility is so drawn that
a group which falls into one of the enumerated classes of proscribed
discrimination, cannot by definition be included, or is excluded only
incidentally. He gave as an example the case of a boy’s choir in which
discrimination on the basis of sex occurs as a result of a prior determination
not itself tainted by discrimination. The learned justice argued further that if
the selection of the person receiving the facility or service is not based on a
ground made illegal by the Code, no unlawful discrimination is found,
regardless of whether some exclusion of the public in fact takes place.
The refusal to permit Debbie Bazso, the girl involved in the appeal, to
play on a boys’ softball team, could not be termed sexual discrimination. The
Ontario Rural Softball Association (O.R.S.A.) had made a prior
description of its activities in its constitution, and services were offered to
both sexes on a segregated basis. The refusal stemmed from an overall
separation of the sexes, on grounds in which sex was “merely” one of the
general criteria. The “real reason” for the segregation was “over-all
fairness”. 82 Mr Justice Weatherston did not, however, clarify the notion of
“over-all fairness”. If motive is not scrutinized in claims of dicrimination,
how is this proposed test to be applied ? Clearly, the learned justice would
not want to use intention as a yardstick, yet it is difficult to see how his
reasoning can stand otherwise.83
Mr Justice Houlden would have dismissed the appeal in Re Cummings
and OMHA on another ground. The Divisional Court’s insistence that the
relevant services must be those made available to the public was rejected. The
Association was not, however, providing “services or facilities” within the
meaning of s. 2 (1) (a). It merely set up a play-off schedule for the various
leagues affiliated with the organization. It did not otherwise deal with the
provision of any other athletic service or facility on the recreational parks
where the activities took place.84
82 Ibid., 321.
83 Ironically, this reasoning, while it seeks to justify segregated services or facilities, could
also lead to an acceptance of “affirmative action” projects; one may discriminate
affirmatively if the underlying motive is “over-all fairness”, in seeking to redress the
imbalance of inequalities produced by discrimination. In Athabasca Tribal Council v.
Amoco Canadian Petroleum Co. (1981) 37 N.R. 336 (S.C.C.), the Supreme Court did not
decide the case on the basis of the affirmative action issue, but ruled that the Energy
Resources Conservation Board did not have jurisdiction to prescribe the implementation of
an affirmation action program. Mr Justice Ritchie said, in obiter, that the affirmative action
program in question would not be in breach of the Individual’s Rights Protection Act, S.A.
1972, c. 2, s. 6 (1), 7 (1); am. S.A. 1980, c. 27, s. 11.1 (1).
84Supra, note 81, 152-5. In apparent disagreement with the belief that human rights
legislation should be given a broad interpretation, Houlden J.A. also held that if it was
intended to apply the Code to activities of groups like the Association, the legislation should
do so in “clear and unequivocal language”.
1981]
COMMENTAIRE
Wilson J.A.’s dissenting opinion contains an interesting discussion of the
majority judgment in GA TE. In her view, despite the differences in wording
between the B.C. and Ontario statutes, a number of observations in GATE
have to be considered. For instance, it would be wrong to interpret Martland
J. as saying that the categories of accommodations, services and facilities
covered by the B.C. section are closed.85 The Ontario Court was directed to
focus on the public nature of the place and not the public nature of services or
facilities. Counsel for the Association relied on GA TE and argued that the
Ontario Code did not dictate the scope of the service the Association must
provide ; the Association itself makes that decision and it cannot be required
by the Code to provide integrated softball teams. Wilson J.A. rejected the
argument and reasoned, in a manner remarkably similar to that of the
minority opinions in GATE, that:
The submission, it seems to me, if accepted could also have the effect of defeating the
object of the legislation. Is it open to O.R.S.A. to say : “We provide softball for whites
and softball for blacks and that is the scope of the service we have decided to provide” ?
I do not think so. I do not believe that the services provided in a public place can be
circumscribed on the basis of the prohibited criteria. Certainly, any organization can
determine what services it is going to provide and to whom, but I think what the
Legislature is saying in s. 2 is: if you are going to provide them in a place to which the
public is customarily admitted, then you cannot exclude anyone from them solely on
the basis of race, creed, colour, etc. 86
There was nothing in s. 287 or in the Ontario Code in general to warrant a
restrictive interpretation of “services or facilities” and thus exclude the
services or facilities provided by the Association. The Legislature had made
no exception in the Code for sports, and it was not appropriate for the courts
to do so. Referring to the restrictive interpretation of the Divisional Court
the learned justice countered: “the Courts are required to construe the
language of the section liberally so as to give effect to the public policy in
favour of equality of rights recited in the preamble”. 88
Wilson J.A. thus refused to follow the Divisional Court’s reading of s. 2
and adopted a construction which would best accord with its spirit and
wording. This element in the Ontario Code distinguishes it from s. 3 of the
B.C. Code, and renders GA TE, to that extent, inapplicable to Ontario. The
recreational services provided by the Association were carried on in public
parks and the ban on discrimination contained in the Ontario Code thus
came into play.
The Supreme Court decision in GATE had a definite impact on the
reasoning of the Ontario Court of Appeal, despite the different structures of
85Ibid., 310 The passage from Martland J.’s opinion is found in GA TE, supra, note 2,
455.
86 Ibid., 311-2 [emphasis added].
87 The Ontario Human Rights Code, R.S.O. 1970, c. 318, s. 2; am. 1972, c. 119, s. 3.
88Supra, note 81, 313-4.
Mc GILL LAW JOURNAL
[Vol. 27
the Ontario and the B.C. Codes. Both Weatherston and Wilson JJ.A. were
careful not to adopt too readily Martland J.’s argument in GA TE that the
Code does not dictate the nature and scope of a public service, facility or
accommodation which are offered to the public, but only guarantees that
everyone must have access to whatever is offered. Mr Justice Weatherston
emphasized that the differentiation in the provision of what is made
available must not be made, or must be incidentally made on prohibited
grounds. The segregated service offered by O.R.S.A. was justified on broad
grounds of “over-all fairness” rather than sex differentiation. Madame
Justice Wilson questioned
this reasoning on the ground that sexual
segregation was a matter falling squarely within the ban on discrimination
prescribed by s. 2, regardless of whether exclusion of the sexes was dictated
by considerations of differences in physical strength, stamina or physique.
Yet the dissenting justice would allow private clubs and associations to deny
participation or membership to the public even in a public forum, where the
exclusion is made on any ground other than that prohibited by the Code. If
“sexual orientation” was included in the enumeration of discriminatory
grounds found in the Ontario Code, the result in GATE might well have
been different had the refusal of services occurred there.89
This is precisely what occurred recently in Quebec, which is the only
province in Canada to have added the category of “sexual orientation” to its
human rights legislation.90 The only judicial discussion of this amendment to
date occurred recently in Association pour les droits des gai(e)s du Qudbec
(ADGQ) v. Commission des Ecoles Catholiques de Montrdal(CECM).91 In
89 The concruiiion that James MacPherson draws regarding the Court of Appeal decisions
in Cummings and Bannerman is that “the effect of the decisions is to deny a large number of
girls access to organized athletic programs in Ontario. This result does not flow fromjudicial
decisions saying that
two associations did not constitute sex
discrimination. Rather, the results are based on narrowjudical interpretation of other words
in the Code, in these cases the words ‘person’ and ‘services or facilities…’ The narrow
judicial interpretation of peripheral wording in the Code has precisely the same effect as a
judicial declaration
that there was no sex discrimination. The girls cannot play.”
MacPherson, Sex Discrimination in Canada: Taking Stock at the Start of a New Decade
(1980) 1 Can. Human Rights Reporter C/7, C/11.
the policies of the
90 Charter of Rights and Freedoms, S.Q. 1975, c. 6; am. S.Q. 1977, c. 6, s. I ; 1978, c. 7.
s. 112, now L.R.Q., c. C-12. Section 10 of the Charter gives the word “discrimination”
the following meaning: “Every person has a right to full and equal recognition and exercise
of his human rights and freedoms, without distinction, exclusion or preference based on
race, colour, sexual orientation, sex, civil status, religion, political convictions, language,
ethnic or national origin, social condition or the fact that he is a handicapped person or that
he uses any means to palliate his handicap. Discrimination exists where such a distinction,
exclusion or preference has the effect of nullifying or impairing such rights” [emphasis
added ]. See also Proulx, Egalit et discrimination dans la Charte des droits et libertds de la
personne [ 1980] R.D.U.S. 301, 458 et seq.
91[ 1980] C.S. 93, (1979) 112 D.L.R. (3d) 230 [hereinafter cited to C.S. ]. On appeal to
Quebec C.A. See Proulx, supra, note 90, 541 et seq. See also Ville de Brossard v.
Commission des droits de la personne[ 1980] R.P. 203, on appeal to Quebec C.A.
19811
COMMENT
this case Beauregard J. (as he then was) of the Qu6bec Superior Court
granted a motion for declaratory judgment92 following the refusal of the
Montr6al Catholic School Commission to rent space to the A.D.G.Q., a gay
rights group. The group requested the space for a weekend conference when
the Commission’s students would not normally be attending classes.
The Association’s request was initially accepted, but two weeks later the
decision was reversed because the Commission “feared
the possible
the education of the C.E.C.M’s children”.93 The
repercussions on
Association then filed a complaint with the Commission des droits de la
personne du Qu6bec (C.D.P.Q.) alleging discrimination on the basis of
sexual orientation contrary to ss. 10 and 12 of the Charter of Human Rights
and Freedoms.
An investigator was assigned to investigate the complaint. He found that
the School Commission’s
its facilities constituted a
discriminatory act, in violation of the rights of the freedom of assembly and
free expression as guaranteed by the Charter. In plenary session, however,
the C.D.P.Q. overturned the finding and recognized the legal merits of the
School Commission’s decision by invoking s. 20, which provides:
refusal to rent
A distinction, exclusion or preference based on the aptitudes or qualifications required
in good faith for an employment, or justified by the charitable, philanthropic, religious,
political or educational nature of a non-profit institution devoted exclusively to the
well-being of an ethnic group, is deemed non-discriminatory. 94
The School Commission relied on this provision and argued before the
Superior Court that homosexuality is condemned by the Catholic Church;
hence the exclusion of the A.D.G.Q. as a lessee was justified by its religious
or educational character. The Association was able to prove, on the
contrary, that the School Commission drew considerable revenues from
renting to the general public, including left-wing, pro-abortion and Muslim
groups.
The School Commission cited GATE as an authority, but Mr Justice
Beauregard carefully distinguished the decision on the grounds that:
I. Le texte de loi en cause en Colombie Britannique permettait beaucoup plus de
latitude au Vancouver Sun que le texte de loi dans la pr~sente affaire ne le permettait A
l’intim~e;
2. La cause en Colombie Britannique mettait en jeu le principe de la libert6 de presse;
3. La ratio decidendi de l’arrt de la Cour Supreme est que le Vancouver Sun offrait
ordinairement au public le service d’annonces non pas d’une fagon absolue mais sous
reserve de son droit de contr6ler le contenu des annonces. Or dans la pr6sente cause
l’intim6e offre au public en g6n6ral l’usage de ses batiments sous r6serve de son droit de
contr6ler la nature des activit6s conduites dans ses batiments mais l’intimde ne s’est
92Pursuant to art. 453 et seq. of the C.C.P., L.R.Q., c. C-25.
93 Supra, note 91, 95.
94 L.R.Q., c. C-12, s. 20.
REVUE DE DROIT DE McGILL
[Vol. 27
jamais rfservfe le droit de contr6ler la nature ou le contenu des discussions que, par
ailleurs, elle permet dans ses bdtiments.95
The learned justice also made some general comments on the proper
interpretation of the exemption clause which merit citation:
I1 faut.., souligner que l’article 20 de la Charte est un article d’exemption : il doit donc
8tre interpr&6t restrictivement et la charge de la preuve quant A son application incombe
A l’intimde.96
Beauregard J. concluded that the School Commission had discriminated on
the basis of “sexual orientation” and that in doing so it had violated the
Charter.
rights
reading of
law. 97 The expansive
The decision of the Quebec Superior Court marks an important step in
the
field of human
the
anti-discrimination provision coupled with a strict interpretation of the
exemption clause of the Charter is wholly in keeping with the broad policy
concerns of the statute, as manifested
its preamble. Mr Justice
Beauregard’s able distinguishing of the GATE precedent was particularly
noteworthy : the School Commission had not reserved the right to control the
ideas and policies pursued by the groups to which it leased space, but had
only wished to control the nature of activities carried on within school walls.
The Commission’s rights, then, were no greater than those of any lessor
under the Civil Code. It now remains to be seen what will happen to this
judgment in the Quebec Court of Appeal.
in
Conclusion
The performance of the Supreme Court of Canada in civil rights cases
has not been encouraging. GA TE, as we have seen, was decided without any
serious exploration of the major
freedom of the press,
discrimination based on sexual orientation, reasonable cause –
that had
been addressed to the Court. The judgment instead created large gaps in the
scope of the B.C. Human Rights Code. Newspapers will now be largely
exempted from its provision; reservation of rights declarations by persons
providing services or facilities to the public may now allow them to escape
issues –
95 Supra, note 91, 97. GA TE was recently distinguished in Re Heerspink and Insurance
Corp. of B. C. (1980) 121, D.L.R. (3d) 464, 470 et seq. (B.C.C.A.). Leave to appeal granted
to the Supreme Court of Canada, 19 May 1981. See also Insurance Corp. of B.C. v.
Heerspink (1973) 91 D.L.R. (3d) 520, [1978] 6 W.W.R. 702 (B.C.C.A.).
96 Ibid., 94.
97See Bergeron, New Categories in Quebec Analyzed (1980) 1 Can. Human Rights
Reporter C/ 17, C/ 18 and Senay, Discrimination illicite – Exception auprincipe -A. 10
et 20 [, ] Charte des droits et libertis [, ] L.R.Q. c. C-12 (1980) 40 R. du B. 127, 129, where
after an analysis of A DGQ and Ville de Brossard the author concludes as following: “Nous
souscrivons entifrement aux positions prises par lejuge Beauregard dans ‘affaire ADGQ.”
See also s. 41 of the Interpretation Act, L.R.Q., c. 1-16.
1981]
COMMENTAIRE
117
the ambit of the discrimination prohibitions; discrimination against the
ideas or policies espoused by a group may now be considered lawful. The
impact of the decision on all other human rights statutes is unavoidable,
given the parallel legislation enacted by the other provinces in this field.
In GA TEthe Supreme Court was given a clear opportunity to resolve –
for the first time under a provincial human rights statute issues and
concerns raised by a minority alleging discrimination. The Court responded
by asserting the primacy of other values over civil rights claims. The passage
of anti-discrimination statutes in every province of Canada has given the
Canadian judiciary the mandate of ensuring that the egalitarian values
embodied in this legislation be firmly asserted. One may conclude after
reading GA TE that the Supreme Court has for the moment failed to fulfill
this vital task.
