Underneath the Golden Boy - Robson Hall Faculty of Law

42 Underneath the Golden Boy
would be protected by s. 1. It relied largely on the governmental nature of the
mayor’s and city’s activities. 66 Though recognizing the prima facie infringement
of s. 2(b) in the remedy of ordering the proclamation, the Board held it justified
by s. 1. 67
Other cases dealing with proclamations include Rainbow Committee of
Terrace v. City of Terrace; 68 Hughson v. Kelowna (City), 69 Hill v. Woodside, 70
and Oliver v. Hamilton (City) No. 2. 71 In all these cases the failure to issue the
requested proclamation was held to be discriminatory, although there were
differences as to the precise issues dealt with, the reasoning in the judgments, or
the remedies awarded.
Although I acknowledge the argument that a mayor acts in an official
(rather than personal) capacity when issuing proclamations, what the mayor says
or does can be perceived as reflecting personal beliefs, and can affect or be
influenced by conscience. Whether or not a city as a corporate entity is even
entitled to Charter rights, being a governmental body, its statements can be seen
as reflecting the views of its councillors, officials, or citizens in general and it
does possess legal personality. Even though the proclamation was ruled a
“service”, the complainants were not denied a public forum in which they could
present their message on their own, or in any way impeded in their ability to
express their own views. The respondents were in reality only refusing to endorse
or approve the complainants’ viewpoint or to express them as their own (or at
least to appear to do so). I can appreciate that the complainants may well have
benefited from the proclamation in question, and could legitimately feel offended
by or fear that harm might result from the refusal.
However, the decisions sometimes recognized the sincerity of the beliefs of
the mayor or councillors in question, either as to the moral disagreements with
the message of the proclamation itself, or that the proclamation would be
counter-productive given the backlash it would produce. With the greatest
respect, I do not believe that, on balance, the cause of equality, or the public
interest, is well served by forcing public officials or public bodies to perform what
(in effect) is an act of hypocrisy.
66
Ibid. at paras. 64–74 at pp. D/509 and D/510.
67
Ibid. at paras. 83–86 at pp. D/511 and D/512.
68
(2002) 43 C.H.R.R. D/413 (BC Human Rights Tribunal, Ana R. Mohanned, July 25, 2002).
69
(2002) 37 C.H.R.R. D/122 (BC Human Rights Tribunal, Carol Roberts, March 21, 2000).
70
33 C.H.R.R. D/349 (NB Board of Inquiry, Brian D. Bruce, Sept. 17, October 8, 1998).
71
24 C.H.R.R. D/298 (Ont. Board of Inquiry, Elizabeth Beckett, March 6, 1995).