Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 43
Interestingly (perhaps ironically), a pre-Charter case seemed more sensitive
to expressive freedoms than some of the post-Charter cases referred to. In Gay
Alliance Toward Equality v. Vancouver Sun, 72 a majority of the Supreme Court
of Canada held the refusal of a newspaper to publish an advertisement by a gay
organization because of its content not to be an unlawful denial or
discrimination in the provision of a service. The advertisement solicited
subscriptions to the organization’s newspaper the Gay Tide.
Although sexual orientation wasn’t named as a prohibited ground of
discrimination under the British Columbia Human Rights Code then in force,
denial or discrimination in “any accommodation, service or facility customarily
available to the public” was prohibited “unless reasonable cause exists for such
denial or discrimination.” A Board of Inquiry held that such provision applied to
newspaper advertising and that the newspaper “did not have reasonable cause”
for the refusal.
Relying largely on “editorial control and judgment” over a newspaper’s
content as “one of the essential ingredients of freedom of the press,” 73 Martland,
J. for the majority held, 74
In my opinion the service which is customarily available to the public in the case of a
newspaper which accepts advertising is a service subject to the right of the newspaper to
control the content of such advertising. In the present case, the Sun had adopted a
position on the controversial subject of homosexuality. It did not wish to accept an
advertisement seeking subscriptions to a publication which propagates the views of the
Alliance. Such refusal was not based on any personal characteristic of the person seeking
to place the advertisement, but upon the content of the advertisement itself.
Another case that could be seen as involving compelled expression was
Brillinger v. Brockie. 75 However, it focused on freedom of conscience and
religion under s. 2(a) of the Charter, and freedom of expression under s. 2(b) was
not even raised. A commercial printer was held liable under ss. 1, 9, and 12 of
the Ontario Human Rights Code for refusing to print letterheads, envelopes, and
business cards for a homosexual organization. Brockie, who was president and
“directing mind” of Imaging Excellence Inc:
[H]olds a sincere religious belief based on the Book of Leviticus, Ch.18, v.22 and Ch.20,
v.13 that homosexual conduct is sinful and in furtherance of that belief he must not assist
72
[1979] 2 S.C.R. 435.
73
Ibid. at pp. 453–455.
74
Ibid. at pp. 455–456.
75
Brillinger v. Brockie (No.2), (1999), 37 C.H.R.R. D/12 (Ont. Board of Inquiry, Heather M.
MacNaughton, Sept. 29, 1999); Brillinger v. Brockie (No.3) 37 C.H.R.R. D/15 (Feb. 24, 2000),
varied Ontario Human Rights Commission v. Brockie, 222 D.L.R. (4 th ) 174 (Ont., Div. Ct.,
2002).