Section 2 then begins the real ball game, namely everyone has the following fundamental freedom. The one difficulty we had, as a committee, is with Section 2(b). What do we do with freedom of thought when you have got legislation dealing with have propaganda? How far is it possible to retain such articles as Section 281(1) of the Criminal Code and Section 281(2)? Moreover, you will see we have quoted from Article 20 of the United National Covenant of Civil and Political Rights where propaganda of this kind is regarded as inconsistent with freedom of speech. [Page 87] So we raised the question which seemed to me to be necessary to raise with you, that caution must be exercised, we hope, by the courts in due course, or by you, as draftsmen on how far you are prepared to push the concept of free speech consistent with our experience of hate propaganda. One suggestion we make here-and I do not wish to do anything more than to drop it as a hint, but you may want to have some language that some of the modern constitutions have, which state very starkly and flatly that the advocacy of genocide or group libel is forbidden. But I had the honour to be the chairman of the special committee on hate propaganda in 1965. At that time we came to the flat conclusion that the advocacy of group hatred and genocide was totally inconsistent with the democratic process and no democratic state could tolerate it. Now, whether you want to put that flatly in a constitution is for you to consider; but I think it is for us to bring it to your attention, because it is of importance.

This Committee did not have a parochial view; this Committee does not pretend that the human rights question belongs to any sector of the Canadian people. It belongs to them all. But, peculiarly enough, there are two or three areas where the Jewish interest happens to be special, and in some cases very sensitive. One is the problem of war criminals, and how that relates to certain protections offered by a charter of rights in the criminal law field. Another is the problem of free speech, and how far that affects such things as hate propaganda

We want to make it very clear, first of all, that in principle we support the entrenchment of a bill of rights in the constitution. We want to see the constitution patriated to Canada and we want to see in that constitution an entrenched bill of rights. However, we do have some concerns. We are not altogether happy with all of the bill of rights. in that connection we are, I suppose, in somewhat the same situation as a number of other groups who have appeared before you. For example, we feel that some of the statements are too vague. Having been a part of the preparation of the brief of the Canadian Civil Liberties Association, I can say that I, personally, share some of the concerns that they have in terms of the vagueness of some of the language, and I speak particularly of such words as “fundamental freedoms”, and those kinds of things in which we talk about “natural rights”, et cetera. We would like to see some of these things spelled out. On the question, for example, of freedom of speech, we believe very strongly in freedom of speech, while at the same time, of course, being against censorship. But we would like to see freedom of speech limited only in certain specific ways. In the brief we have indicated, for example, that to a large extent we believe in the doctrine of clear and present danger. We think that freedom of speech should be curtailed where the danger is clear. For example, we have no right to go into a crowded theatre and shout “Fire!” resulting in people being trampled to death as a result of fleeing from a fire which is nonexistent and where there is no danger at all. In a situation like that, obviously, we do not have absolute freedom. But we think this needs to be spelled out a lot more clearly than it is today.

I would like to ask you if you have considered, Ms. Hardy, the notion of freedom of the press as an individual right or collective right? Ms. Hardy: It could be considered both because if you speak of freedom of the press for a newspaper, it includes the whole role of a newspaper in a community as well as the role of an individual reporter or columnist, so that I really feel that there would be no point in having freedom of the press for an individual if you did not have it for the publication for which the individual happened to be working, either perhaps in the electronic media or in the print media. So I would prefer to have it refer to both an individual and collective group. Senator Lapointe: Do you think that editors of papers or radio stations would have to come here also to express their opinion on freedom of the press? Ms. Hardy: We would include them as responsible leaders, presumably in the community, and the value of having responsible leadership is very noticeable now that the Royal Commission on Newspapers is sitting and I think that you have to have the leadership in order to develop followers and principles.

I want to refer you to Section 2 of the resolution which is a Section on fundamental freedoms. It says: Everyone has the following fundamental freedoms: (a) freedom of conscience and religion, (b) freedom of thought, belief, opinion expression, including freedom of the press and other media of information What I want to ask you is, how do you think the word “everyone” would be interpreted as it pertains to everyone has the following freedoms, the freedom of the press, freedom of other media of information. I want to take you back in this country about four of five years when the government across the way introduced legislation, which I supported, concerning Time magazine and Reader’s Digest, to try and Canadianize the magazine industry in this country. I am wondering whether or not if we were to enshrine Section 2 in the constitution as written, Time magazine or Reader’s Digest could have gone to the courts and said: “We have a consitutional right in this country of freedom of expression and freedom of the press and freedom of information, freedom of the media; therefore, the government of Canada [Page 12] and the Parliament of Canada do not have the right to legislate restrictively against our two organizations.” Could it be interpreted in that way? Ms. Crandall: Mr. Nystrom, I think that is the kind of question which an expert should be asked to answer. This is what we are saying now, We have not had an opportunity to look at all sides of these questions to give you any kind of an answer. Again, I am not trying to be difficult. But that is one of the questions which we would like to ask someone who is knowledgeable. Mr. Nystrom: I appreciate the answer. The reason why I ask the question is that the words “everyone” and “citizens of Canada” are used throughout the resolution. I am not a lawyer myself, but it would seem to imply that these could be given a fairly wide interpretation, and I am concerned that we might have in a constitution something that is restrictive where we could not increase Canadian content. Let me ask you the same question again about the electronic media. There is growing concern that we Canadianize radio, television—and the CRTC is concerned about this, about television programs coming in from the United States. There is talk now about a second CBC network in this country. Again, I want to ask you a similar question pertaining to the electronic media. If everybody has the freedom of expression and freedom of the press and other media of information, in your opinion, or perhaps in the opinion of your colleague, do you think we would be able to do this as a Parliament, where the constitution says we are denying a fundamental right to everyone, perhaps NBC, New York, or ABC somewhere in the United States? Ms. Hardy: I think, Mr. Nystrom, that it is very important. I have served abroad for Canada in the Department of External Affairs, in the public affairs field, and I feel that it is very important that we develop a Canadian culture, that we develop an interest in things Canadian and a pride, and I grant that there are very good programs produced by the electronic media of other countries but I think we should be proud of our own heritage and be proud of what we can do. I have just been at a briefing on plans for CBC 2, Tele Deux, and I am very pleased that this is what may be coming along shortly and I would hope that we would not refuse all foreign media offers to assist us in our cultural development, but I think we should certainly give ourselves the chance to be first in the field and to welcome the opportunity and the pride in our own country and in what we can develop ourselves. This is a continuing subject of interest financially as well as culturally, naturally, and I would hope that the media club, which now covers the electronic media representatives as well as the press, would be in the forefront of assisting in developments if possible. Thank you. [Page 13] Mr. Nystrom: I wonder if you could possibly, if you have time to do a written brief to the Committee, to try and seek some advice on those questions, because I agree fully with you that we have to develop a Canadian culture and of course we need some input from other countries around the world because we are part of the global village, we have to have a Canadian identity and it is very important, and I would be very concerned if the way Section 2 is written that perhaps we could be denied through our constitution the right to develop fully the Canadian culture and pehaps you could look at that. I also wanted to ask your interpretation of a couple of other words in Section 2. I wanted to ask you what you think the interpretation in your opinion would be of other media of information. We have singled out here freedom of belief, opinion, expression, including the freedom of the press. I know what the press is, I think, but what would be the interpretation legally, in your opinion, of other media of information, what would that include? Ms. Hardy: I would expect that that would include the electronic journalism. The press is usually referred to as print media. Media is a very broad term that has had to be used because you cannot just refer to the press now because it covers a number of other representatives who inform, through one source or another, and I think the electronic media has an important place now in our culture because communications in this country is an aspect of helping unify the country, I think, by letting us get to know each other, not only through print but through electronic means.

Thank you, Mr. Joint Chairman, for giving the Media Club the opportunity to before this Special Joint Committee. As you will see from our submission, Media Club is concerned with the profession, therefore concern of members is with the proposed entrenchment in a charter of rights and freedoms of a new Canadian constitution, freedom of the press.

In Section 2(b). that section gives the impression that the freedom of the press and the media is an individual right. Well, in fact, as we have already pointed out in our report, the freedom of the press is merely a mode by which the general freedom of expression is exercised, it is not a right of an individual as such.

Senator Austin: Under section 2, where you see Subparagraph (b), reference to freedom of thought, including freedom of the press and other media of information, Minister, is it the intention to in any way enlarge the present rights as they are so indistinctly understood of the press and other media in Canada? Is it, for example, now open to argue as to protection of sources in the hands of journalists and press and electronic media people? [Page 79] Mr. Chrétien: I do not know how the Court will interpret that, but we are dealing here, we are formalizing the guarantee that exists traditionally in this society concerning the freedom of the press and other media. What will be the interpretation of the Court in terms of the sources of information and so on, it would not be for me, I do not know what the Court will decide or if there will be some different circumstances that will have to be analyzed by the Court before rendering a judgment. Senator Austin: Your attempt here was to be neutral? Mr. Chrétien: As tnuch as possible.