British Columbia had a healthy human rights movement in the 1960s and 1970s. Numerous civil liberties and human rights NGOs emerged during this period. In 1969 Premier William Bennett consolidated existing legislation dealing with discrimination in accommodation and employment into the Human Rights Code and created a commission to administer the code. However, critics of the government argued that the commission under-funded and poorly promoted within the province, with few employers even aware of its existence. A B.C. Federation of Labour report went so far as to suggest the passing of the Code was simply an election tactic, and that the government had little or no interest in promoting human rights in B.C. (Bennett subsequently won the election in 1969). The B.C. Civil Liberties Association believed the legislation would do “little to foster or safeguard basic civil rights of British Columbia....the bill is hardly more than a consolidation and updating of existing fair employment and accommodation statutes, and appear weak even within this narrow scope.”

A new Human Rights Act passed by the NDP government of David Barrett in 1973 not only broadened the scope of the original Act, but established a separate human rights branch within the Department of Labour to deal with complaints and promote awareness of the code throughout the province. The new code and human rights branch were a dramatic improvement from its predecessors. In 1975, the branch received 700 complaints, operated with a staff of seventeen, and for the first time had lay people from various professions sitting on commissions. Its first official report noted that some of the “decisions rendered in 1975 have dealt with the refusal by a beer parlour to serve members of the counter culture, the refusal by a hotel to provide a Native Indian woman with a room, the refusal by a newspaper to provide advertising space to a homosexual group, and discrimination against a woman in a mining camp over adequate accommodation.” Local offices were opened in Terrace, Kamloops, Prince George, Vancouver, Victoria and Nelson. Within a few years, the government could boast a highly active human rights program. In 1978, they dealt with 704 complaints (184 carried over from 1977) and closed 379 cases in areas such as employment discrimination, services and tenancy.

One of the most controversial decisions handed down by the B.C. Human Rights Commission in the seventies was the GATE case. G.A.T.E., Gay Alliance Towards Equality, was one of the earliest gay rights groups in the country, formed in Vancouver in the early 1970s. It was a small group, perhaps seven dedicated members at any given time, with its own publication, Gay Tide. GATE was part of a general movement across Canada in the early 1970s, with the formation of at least six other gay rights groups in other cities, to create physical spaces for gay people while pursing amendments to human rights legislation to incorporate sexual orientation as basis for discrimination. Between 1976 to 1979, GATE became the focus of a general struggle across the country to challenge discrimination against homosexuals in the mainstream media. Following a refusal by the Vancouver Sun in 1976 to publish an advertisement submitted by GATE (read as follows: “Subscription to Gay Tide, gay lib paper. $1.00 for 6 issues. 2146 Yew St., Vancouver”), the latter appealed to the B.C. Human Rights Commission. The appeal was successful. The commission viewed the newspaper’s decision as a violation of section 3 (1) of the B.C. Human Rights Code:

3. (1) No person shall
(a) deny to any person or class of persons any accommodation, service, or facility customarily available to the public; or
(b) discriminate against any person or class of persons with respect to any accommodation, service, or facility customarily available to the public unless reasonable cause exists for such denial or discrimination. [author’s italics]

The newspaper quickly challenged the ruling in the B.C. Supreme Court where the presiding judge concluded that a question of reasonable cause was a question of fact for the commission and could not be interfered with by a court. The B.C. Court of Appeals did not agree. In a 2-1 decision, Justices Branca and Robertson focused on the issue of reasonable cause in overturning the lower court decision. They asserted the court’s jurisdiction in reviewing a commission’s decision and chastised the Human Rights Commission for substituting a subjective analysis of the editor’s motives for a finding of fact as the legislation required. The commission should have focused on the potential effect a gay advertisement would have had on the reputation of the paper instead of the editor’s possible bias. Branca went so far as to justify discrimination against homosexuals as a pervasive bias in the community and therefore a legitimate consideration for the newspaper in determining its policies. According to Branca, “many people in our society may well entertain a bias or some predisposition against homosexuals or homosexuality on moral and/or religious grounds. It cannot therefore be justly said that a bias so held has no reasonable foundation....If one bases a bias against homosexuals because they are persons who engage in unnatural sexual activity which may make them guilty of a serious crime in certain circumstances and because they are forbidden entry into Canada as undesirables, can one say that such a bias, if it is arrived at for those reasons, is unreasonable? I would not think so.” [Source: Vancouver Sun v Gay Alliance [1977] 77 Dominion Law Reports (BCCA) 487]. The decision was designed to limit the scope of the Code to matters defined within the parameters of the legislation and to warn the commission against adding new categories, while further limiting their examinations to questions of fact. Justice Seaton dissented from the decision because he felt the Code required evidence from the accused to justify differential treatment against homosexuals. His appeal to the principle of civil liberties for all, including homosexuals, fell on deaf ears.

The GATE case was eventually heard by a full panel of judges in the Supreme Court, and in a 6-3 decision the majority of justices supported the Vancouver Sun. The decision was largely based on the freedom of the press provisions in the Canadian Bill of Rights, although there was some debate over the validity of the ‘reasonable limits’ clause in the Human Rights Act. Speaking for the majority, Justice Ronald Martland concluded that newspapers were protected in their right to express whatever opinions they saw fit, and this protection extended to refusing to publish an advertisement violating those opinions. Continued pressure by GATE eventually led the newspaper yo voluntarily publish the advertisement in 1980, but the decision remained a powerful blow against gay rights and the scope of Human Rights Commission’s ability to act. The GATE case was simply another example of the courts being a poor forum for human rights activists to seek redress before the Charter in 1982.