Underneath the Golden Boy - Robson Hall Faculty of Law

44 Underneath the Golden Boy
in the dissemination of information intended to spread the acceptance of a gay or lesbian
(homosexual) lifestyle. Mr. Brockie draws a distinction between acting for customers who
are homosexual and acting in furtherance of a homosexual lifestyle. 76
As a remedy, the Board ordered “Brockie and Imaging Excellence to provide
the printing services that they provide to others, to lesbians and gays and to
organizations in existence for their benefit” and to pay $5 000 damages. 77
On judicial review, the Divisional Court held that the order was correct to
the extent it “was directed to the activity which gives rise to the offensive
conduct, namely the provision of printing services for ordinary materials such as
letterheads, envelopes and business cards.” It went on to acknowledge,
“However, the order would also extend to other materials such as brochures or
posters with editorial content espousing causes or activities clearly repugnant to
the fundamental religious tenets of the printer.” 78 The Court concluded:
In the result, we are of the opinion that the impact of the Board’s order could be so broad
as to extend beyond what is reasonably necessary to assure the rights of Mr. Brillinger and
his organization to freedom from discrimination but may require Mr. Brockie to provide
services which could strike at the core elements of his religious belief and conscience.
In order to balance the conflicting rights, we would add to the Board’s Order ‘Provided
that the order shall not require Mr. Brockie or Imaging Excellence to print material of a
nature which could reasonably be considered to be in direct conflict with the core
elements of his religious belief or creed.’
We affirm the Board’s Order in all other respects. 79
The Court did not decide the Appellants’ challenge to “the constitutional
validity of the Code because it allows no defence based on bona fide reasons” to
the “accommodations, services, and facilities” provisions. It held “the Appellants
have led no evidence to provide a factual matrix necessary to challenge an
otherwise apparently valid statute… .” 80 As the alteration to the Board’s Order
only dealt with the remedy provided rather than the liability under the Code,
this case cannot be seen as addressing the issue as to whether or not there can be
a “constitutional exemption” from a valid legislative provision. As mentioned
earlier, it left completely untouched any possible “freedom of expression” issues.
It is true that a commercial printer generally does not exercise editorial control
of the content of the material as a newspaper or publisher does, and does not
purport to “proclaim” anything in the printer’s name. Therefore, as the
“message” of the work is generally not attributed to the printer, any freedom of
76
222 D.L.R. (4 th ) para 3 at pp. 178-179.
77
37 C.H.R.R. at p. D/20.
78
222 D.L.R. (4 th ) para 48–49 at p. 190.
79
222 D.L.R. (4 th ) at para 57–59 at p. 192.
80
222 D.L.R. (4 th ) p. 187.