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Publication or Display of Offensive Material
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The Waldo Case (1989)
objective test is used to assess discriminatory representations?
In 1981, a complaint was filed against the Engineering Students' Society (University of Saskatchewan) for publishing in Red Eye (their newspaper), in contravention of s. 14 of the Code, "articles, notices, symbols, and other representations that ridicule, belittle and otherwise affront the dignity of women because of their sex". The offensive content included "(i) several vulgar and often sexually oriented writings in the form of articles, headlines, limericks, and the like degrading to women; (ii) two photographs, one of a semi-clad woman riding a horse, with the caption "Godiva Mounts Agro President," and the other of detached, unclothed female breasts, with the caption "Found at Hell Dance - Owner Please claim at ESS office"; and (iii) a number of cartoons one of which, by way of example, depicted a blown-up, balloon-like female form about to be taken away on a stretcher, with a distraught male explaining what had happened: "And then.... (SNIFF)... I had this tremendous orgasm". A Board of Inquiry ruled that discrimination had occurred, but its decision was overturned by the Court of Queen's Bench on the grounds that the Board had misinterpreted the
purview of s. 14 to include the prohibition of "hate literature and group defamation". The latter are criminal issues, it maintained, not property and civil rights concerns. This means that the offensive publication should be reported to, and handled by, the federal criminal court system, not the provincial human rights mechanism. Moreover, the object of the complaint included "articles", a form of communication that does not, according to the Court, fit into the class of materials prohibited by the Statute. The latter prohibits only the publication of "any notice, sign, symbol, emblem or other representation". The expression "or other representation", it maintained, was be interpreted narrowly to mean visual representations, such as "images, likenesses or reproductions". Saskatchewan (Human Rights Comm.) v. Engineering Students' Society (1989), 10 C.H.R.R. D/5636 (Sask. C.A.)
Is Article 14.1 within the legislative competence of the province?
If yes, are newspaper articles within the class of materials prohibited by Article 14.1?
Split Decisions and Reasoning
Cameron J.A. maintained in human rights law, the scope of a purpose is often much broader than the scope of its jurisdiction. This applies to the Code in general, and to the Statute in particular. For example, he said that the Saskatchewan Code has a broad double purpose: (i) to enact the principle that all members of society are equal and have the right to be treated with dignity and respect; and (ii) to eliminate discrimination. This broad scope, however, is limited by at least two factors: 1) discrimination is prohibited only in the three public areas of employment, housing and services and 2) not all discriminatory practices are prohibited within these areas (for example, in Saskatchewan an employer can discriminate on the basis of sexual orientation, but not on the basis of gender). Similarly, the purpose of Statute 14, [(i) "to render more complete the
prohibition of those discriminatory practices covered elsewhere in Part II and (ii) to discourage some of the underlying causes of those discriminatory practices") is broad, whereas its scope is limited to discriminatory advertisements (for housing, services or employment). It does not relate to criminal activity, such as hate literature and group defamation, and therefore does fall within the exclusive jurisdiction of Parliament. Paras 41269-41295)
Vancise J.A. concurs. "The provincial legislation regulates activities or transactions wholly within the province. It is concerned with the regulation of notices, signs, symbols, emblems and other representations situated within the province, and with the regulation of the content of enterprises such as newspapers or tabloids within the province. There is no operational conflict. One section is in relation to crime, a federal matter, and the other is a prohibition of discrimination and regulation of the content of newspapers which can properly be regulated by the province under ss. 92(13) and 92 (16)
Cameron J.A. ruled that the Board had erred in filing its complaint against two editions of the newspaper as a whole and not against the particular representations that had been published in those two editions. He said that Statute 14 simply did not have the scope to cover "newspapers" since the latter do not fall within the class of materials prohibited by Article 14.1. To prove this, he used a grammatical rule (called EDJUSDEM GENERIS) according to which, in an enumeration, when a general term follows a list of particular terms that form a class, the general term must be interpreted narrowly, such that it fits into the class signified by the list of particular terms. Statute 14, which prohibits the publication of "any [discriminatory] notice, sign, symbol, emblem or other representation" contains a general term "of other representation" that follows a list of particular terms "notice, sign, symbol, emblem" that form a class of "briefly written and graphic forms of statement". The expression "or other representation" should therefore be taken to mean "or other similar representation" such as it is written in the Ontario Human Rights Code. Since newspapers are not "briefly written and graphic forms of statement", then they are not subject to prohibition by Statute 14.
Vancise J.A. disagrees. Although he upholds the validity of the edjusdem generis rule in general, Vancise determined that application of the rule was inappropriate in this particular case. The word "notice", which signifies a form of written communication, is in a different class of words than "sign, symbol and emblem" which signify images and reproductions. The word representation can therefore be interpreted as part of either the word information class or the graphic reproduction class. This means that the content of the newspaper as a whole, composed of verbal and graphic messages, is subject to Statute 14. Moreover, unlike Cameron J.A., Vancise J.A. maintains that statutes should be interpreted broadly, not narrowly, so as to meet the purpose of the Code.
Although newspaper articles do not fit
into the category of signs and symbols and therefore can not be prohibited
under the signs and symbols statute, they nonetheless do not have the right
to discriminate. In Hellquist (2001), a Saskatchewan board of inquiry found that a newspaper had
discriminated against gay men when it printed an
advertisement for homophobic bumper stickers featuring quotes from
the Bible. In
Kane (2002), an Albertan Human Rights Panel
ruled that a business magazine had discriminated against members of
a religious group when it printed an article about a failed business
deal which contained anti-Semitic jargon.
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