Newspaper Editorials Not Covered by Human Rights Code

The Ontario Human Rights Tribunal recently ruled that newspaper editorials are not covered by section 1 and 13 of the Ontario’s Human Rights Code. The case of Whiteley v. Osprey Media Publishing Inc. and Sun Media Corporation involved an allegation from a lawyer that the respondents (Osprey Media Publishing Inc., Sun Media Corporation, which is owned by the Quebecor media chain, and the Ontario Human Rights Commission) discriminated against him on the basis of place of origin in goods, services or facilities. The lawyer, Alan Whiteley, argued that an editorial in The County Weekly News of Picton, Ontario (in Prince Edward County), disparaged persons who have moved to Prince Edward County from elsewhere.

The editorial in question was published on July 9, 2009:

Ask a Prince Edward County native to describe an import and they’re not likely to tell you about their Saab, Subaru or Lexus.

In fact, if you drive one of those, you’re likely what the true County resident would derisively describe as an import—a know-it-all city slicker moved to the bucolic shores of Prince Edward from Toronto or the 905, bringing along your urban sensibilities, baggage, gripes, niggles and attitudes.

Worse still, when the import starts telling the locals they’re all backward hicks who don’t know better than to stand up for themselves, you have to start wondering what’s behind the bluff and bluster. There is no shortage of cataclysmic fights under way in the county right now, ranging from seasonal cottage development on East Lake to the wind turbine debate that still rages. There are import doctors who are using their newly minted county address to bolster their claim that the infernal wind machines will ruin your health, make your cat crazy, stop your cows from milking and flatten your soufflé. As well, it seems there’s some real estate types now trying to protect their prized Prince Edward pied a terre under the guise of a campaign to actively oppose the introduction of wind farms in the County.

There was a bus trip being advertised for a ride in July from the County to Wolfe Island by a group that doesn’t identify itself (unless you look at the email addresses attached). The ad suggests the unnamed organizers planned the trip solely to show County residents what their little piece of paradise can look like if they let wind farms establish in Prince Edward. “This trip is not for profit, nor to convince anyone of anything,” states the ad’s copy. “Every resident of Prince Edward County is invited, whatever your position.”

County residents don’t need bus tours put on by real estate agents with a vested interest in preserving wind-turbine-free vistas to increase the saleability of County properties. What they need is a way to produce green energy for a polluted province and planet and farmers who’ve been scratching out a living on notoriously poorly irrigated land for decades can finally make a little money by leasing out land on which the clean energy machines will operate.

Nothing a County native hates worse than an import telling them what to do or how to think and this is a good example of just that sorry principle at work again.

The County Weekly News stood by its editorial, and denied discrimination.

What is an editorial or editorial comment? An editorial comment is when an author who is purported to be an unbiased observer slips an opinion into his or her story. It also refers to the opinions expressed in the editorial pages of a newspaper, either by the staff or readers who contribute through letters or columns.

Whiteley initially took the position that the editorial was a service within the meaning of s. 1 of the Code. The section states: “Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.” Based on the Supreme Court of Canada case Gay Alliance Toward Equality v. Vancouver Sun, 1979 CanLII 225 (S.C.C.), [1979] 2 S.C.R. 435, it was evident to the Ontario Human Rights Tribunal that the content of a newspaper is not a service within the meaning of human rights legislations. The latter case involved the question of whether the acceptance of advertisements is a “service … customarily available to the public” under British Columbia’s human rights legislation. The majority held that the definition of service is “subject to the right of the newspaper to control the content of such advertising”.

Even the dissenting Supreme Court judge, who argued that advertising was a service, was careful to emphasize that the content of newspapers is not a service under human rights legislation. The Court held as follows, at p. 469:

It should also be made clear that the right of access with which we are here concerned has nothing to do with those parts of the paper where one finds news or editorial content, parts which can in no way be characterized as a service customarily available to the public.

This conclusion is further strengthened by the Canadian Charter of Rights and Freedoms, which came into force after the Gay Alliance case was decided. Section 2(b) of the Charter guarantees freedom of expression, including freedom of the press. Expression of editorial opinion is at the very core of that right (see Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559, at paras. 61-66).

As for section 13 of the Ontario Human Rights Code, Whiteley argued that the editorial was a “notice, sign, symbol, emblem, or other similar representation” that indicated the intention of the person to infringe a right or that was intended to incite the infringement of such a right. The intention, he said, was to refuse to publish letters to the editor from outsiders or to comment on the worth of such letters.

The Ontario Human Rights Commission took the position that a newspaper editorial is not a “notice, sign, symbol, emblem, or other similar representation”. To support its argument, the commission relied upon the decisions of the Manitoba Court of Appeal in Warren v. Manitoba Human Rights Commission (1985), 6 C.H.R.R. D/2777, and the Saskatchewan Court of Appeal in Saskatchewan (Human Rights Commission) v. Engineering Students’ Society (1989), 10 C.H.R.R. D/5636. Both found that the content of newspapers does not fall within similar language in those provinces’ human rights legislation.

The tribunal agreed that newspapers do not fall under section 13 of the code. That section prohibits discrimination via a “notice, sign, symbol, emblem or other similar representation”, which is generally thought to be aimed at signs indicating discrimination or an intention to discriminate such as “no coloureds allowed”. The tribunal stated that:

As publication of opinion in the media is a matter at the core of freedom of expression and freedom of the press in a democratic society, any ambiguity should be resolved in favour of the exclusion of such matters from the [Ontario Human Rights] Code.

As a result, the tribunal ruled that it had no jurisdiction to scrutinize the content of newspaper editorials. The content of a newspaper editorial is not a “service” within the meaning of s. 1 of the Code, nor is it a “notice, sign, symbol, emblem or other similar representation” within the meaning of s. 13 of the Code. Accordingly, the tribunal dismissed the case confirming that these issues about how human rights law applies to newspapers have already been settled in law.

Freedom of expression as it relates to the news media has been diligently defended and promoted for centuries by both the public and the press. There is a long-established democratic principle that the news be independent, and be seen as independent, from the state. This principle applies even when the media are state-owned.

Interestingly enough, The Canon of Journalism states:

Freedom of expression is a fundamental human right, and newspapers have that absolute freedom in both their news coverage and editorial comment. In exercising that freedom, however, member newspapers must be duly aware of their heavy responsibility and be constantly mindful not to impair public interests.

However, in this day, we are blessed with the Internet, social media (e.g., twitter, facebook), blogs by Tom, Dick and Harry to express their opinions (sometimes uninformed and construed as news), and comments on newspaper articles on a variety of subjects (sometimes abusive, insensitive and down right offensive); and these opinions and comments can be published and become viral in a matter of minutes. Can this journalistic principle still be applied the same way?

With the proliferation of reputable blogs, and the movement of many newspapers and magazines to the online realm, the definition of “news media” may loosen (indeed, it may already have loosened), and tribunals and courts may face questions about what in fact constitutes a “newspaper”. On the other hand, many wonder about the limits of free speech, whether it should apply universally or whether it is right to restrict speech when it is used to defame or spread hate.

In Canada, as stated above, freedom of expression is enshrined in our Constitution in section 2(b) of the Canadian Charter of Rights and Freedoms. However, Canada’s freedom of expression is not absolute and can be limited under certain situations. Section 1 of the Charter states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The clause says that the law can permit a limitation on freedom of speech if it can be justified as being a reasonable limit in a free and democratic society. Conversely, it implies that a restriction can be invalidated if it cannot be shown to be a reasonable limit in a free and democratic society.

Surely you might think that the County Weekly News case comes down to an easily offended former Torontonian, and maybe that’s so, but what if we replaced every instance of “import” in the editorial with “immigrant”? Would that still be okay? I have no doubt such editorials have been published across various media.

So I ask you, is it reasonable to put limits on the freedom of expression of newspapers? Is it possible or likely that the freedom of speech that newspapers currently enjoy might threaten our free and democratic society? Do you agree with the tribunal’s decision that newspaper editorials are protected by the free speech provisions of Canadian human rights law?