January 2010
Last week’s Alberta Court of Queen’s Bench ruling in
Boissoin vs. Lund freed one man from the government’s censorship machine, and
also diminished the machine’s ability to censor citizens’ opinions.
The Alberta government’s censorship machine is
paragraph 3(1)(b) of the Alberta Human Rights Act.
This law reduces our ability to speak frankly about
issues of public concern if our opinion happens to touch on race, ancestry,
colour, place of origin, gender, sexual orientation, religion, source of income,
marital status, or family status. Anything that is "likely" to expose a person
to "hatred or contempt" on the basis of one of these grounds can trigger a human
rights complaint. Taxpayers fund the government’s censorship machine, but those
prosecuted by it must foot their own legal bills.
Under paragraph 3(1)(b), Rev. Stephen Boissoin was
subjected to a "human rights" prosecution after writing a letter to the editor
of the Red Deer Advocate in 2002. His letter expressed opposition to presenting
homosexuality in a positive light to schoolchildren.
Justice Earl Wilson reprinted the entire letter
in his judgment, posted at www.CanadianConstitutionFoundation.ca.
University of Calgary professor Darren Lund
complained to the human rights tribunal about the letter, triggering more than
seven years of stress for Rev. Boissoin, not to mention huge legal costs, lost
energy, and wasted time.
Justice Wilson set aside the Panel’s Order which had
required Rev. Boissoin to pay $5,000 to Prof. Lund, to refrain from ever again
making "disparaging remarks about gays," and to ask the Red Deer Advocate to
publish an apology.
Paragraph 3(1)(b) reaches far beyond disagreements
between gays and Christians.
Write a letter to the editor calling for more
frequent driver’s testing for seniors, and you may be charged with exposing
people to hatred or contempt on the basis of age.
Express your opinion about integrating
fundamentalist Muslims into Canadian society, or limiting immigration from
certain countries, and your comments might be found "hateful" on the basis of
religion or place of origin. Argue that single mothers should not receive
welfare benefits if they live with a boyfriend or common-law spouse, and a
contempt complaint could be filed against you in respect of source of income,
marital status, or family status. Criticize current aboriginal policy and you
might find yourself accused of contemptuous speech on the basis of race or
ancestry.
Even if the complaint is ultimately dismissed,
Albertans live under the threat of having to defend themselves against
prosecutions that can be triggered by the likes of Prof. Lund.
Supporters of paragraph 3(1)(b) are correct when
they point out that there should be some restrictions on speech. And Canada’s
Criminal Code does place restrictions on speech. It’s illegal to advocate
genocide, utter threats, willfully promote hatred, and harass people through
repeated unwelcome communications.
The Crown must prove its case beyond a reasonable
doubt to convict a person of one of these offences.
The accused person has the right to a timely trial,
and to have proper rules of evidence and procedure followed.
Not so with human rights proceedings, which can drag
on for years, and which accept mere hearsay as reliable evidence. For example,
Justice Wilson took the Human Rights Panel to task for having ruled that Rev.
Boissoin’s letter had contributed to an assault on a gay teenager.
There was no evidence before the panel that an
assault took place.
Further, there was no evidence that the person
committing the assault (if one even took place) was influenced by the letter to
the editor.
This is but one example of numerous errors in the
panel’s procedures and reasoning, by which the panel makes itself look like a
kangaroo court.
Unfortunately, Justice Wilson did not strike down
section 3(1)(b) as an unconstitutional violation of free speech.
He did, however, limit the circumstances in which
speech prosecutions are likely to succeed.
He ruled that only words that demonstrate a real
intention to discriminate in the provision of housing, employment, services,
etc., or words that incite others to discriminate in such areas, are outlawed.
This court ruling is a positive development toward
restoring freedom of speech in Alberta, because it establishes that political
commentary on public policy issues — even when expressed in polemical or
offensive terms — ought not to be prosecuted.
Nevertheless, Premier Ed Stelmach should dismantle
his government’s censorship machine entirely.
John Carpay is a lawyer and Executive Director of the Canadian Constitution Foundation, which intervened before the Alberta Court of Queen’s Bench in Boissoin vs. Lund.
The Calgary Herald, December 10, 2009.
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