Canadian Constitution Foundation – December 3, 2009
Partial victory for free speech in Boissoin court judgment
The Canadian Constitution Foundation (CCF) responded to today’s release of the Judgment of the Alberta Court of Queen’s Bench in Boissoin v. Lund, a case which pits freedom of expression against human rights legislation.
In 2008, an Alberta Human Rights Panel ordered Reverend Stephen Boissoin to pay $5,000 to University of Calgary professor Darren Lund in respect of a letter Reverend Boissoin wrote in 2002, published in the Red Deer Advocate. In his letter to the editor, Reverend Boissoin expressed his opposition to homosexuality being portrayed positively in the public school curriculum, and commented on other public policy matters. Professor Lund complained to the Alberta Human Rights Commission that! the letter violated section 3(1)(b) of Alberta’s human rights legislation, which bans expression that “is likely to expose a person or a class of persons to hatred or contempt” because of race, religious beliefs, colour, and other grounds.
Alberta Court of Queen’s Bench Justice E.C. Wilson set aside the Panel’s order against Reverend Boissoin, ruling that Reverend Boissoin did not violate section 3(1)(b) of the legislation. Accordingly, the Order against Reverend Boissoin, that he pay $5,000 to Professor Lund and that he refrain from making “disparaging remarks” about homosexuals, is no longer in force.
“I am pleased that the Human Rights Panel Order against Reverend Boissoin has been overturned,” stated John Carpay, lawyer and Executive Director of the Canadian Constitution Foundation.
“Unfortunately, the law that was used against Reverend Boissoin to subject him to expensive and stressful legal proceedings for more than seven years, is still on the books,” added Carpay.
“In spite of today’s court ruling, Albertans need to continue to exercise extreme caution when speaking about public policy issues, lest they offend someone who then files a human rights complaint. No citizen is safe from being subjected to a taxpayer-funded prosecution for having spoken or written something that a fellow citizen finds offensive,” continued Carpay.
The Canadian Constitution Foundation (CCF) intervened in Boissoin v. Lund to argue that the legislation itself violated Canada’s constitution, because provinces do not have the constitutional authority to restrict free speech on matters of public policy. Justice Wilson rejected this argument.
Justice Wilson also held that section 3(1)(b) does not violate the Canadian Charter of Rights and Freedoms, following the Supreme Court of Canada 1990 decision in Taylor v. Canadian Human Rights Commission.
The decision to appeal this ruling to the Alberta Court of Appeal lies with the litigants: Reverend Boissoin and Professor Lund. As an intervener, the Canadian Constitution Foundation does not have the right to appeal this ruling. However, if the ruling is appealed to the Alberta Court of Appeal, the Canadian Constitution Foundation plans to seek intervener status again, to argue that the legislation itself is unconstitutional.
For more information about this case, please see Karen Selick’s September 18, 2009, Ottawa Citizen column: “Trying to eliminate offensive expression is dangerous.”
Public date: December 3rd, 2009Categories: News
Tags: alberta, Free Speech, Freedom of Religion, homosexuality, Human Rights Commission, Stephen Boissoin
December 4, 2009
Unfortunately, this release can be misleading. It focusses on what we did not win BECAUSE that was what the CCF was really there for. Truth is, the ruling was an amazing victory for me (sometimes I got lost in the bigger agenda), for freedom of speech and religious expression. In that sense the ruling was very powerful. It was a great beginning and the AHRC and all commissions will take notice of it.
Like Mick Jagger said, “You can’t always get what you want, but if you try sometimes you just might find…you get what you need”
December 6, 2009
The decision of Justice Earl Wilson of the Court of Queen’s Bench in Boissoin v Lund will have a significant long term positive impact on religious freedom in Canada:
1. The decision established a very high threshold for the conclusion that a publication is in violation of the “hate” provisions of Alberta’s human rights laws. The prosecutor, Dr. Lund, told the Canadian Press that “If the language contained in the letter does not meet the threshold of hateful, I am not certain what possibly would.” If Dr. Lund is right, then there will be no further prosecutions. The decision of the Alberta Human Rights Commission to withdraw from the case suggests that the Commission learned from Dr. Lund’s mistake. There is no place for thought control in a free and democratic society.
2. Dr. Lund told the Calgary Herald that the decision of Justice Wilson “takes away the tools at our disposal”. He is correct. The tools of censorship should not be available to prohibit freedom of expression in Canada. There is no circumstance in a free society where limitations on political or religious debate can be justified.
3. While the decision did not strike down Alberta’s “hate speech” laws, it significantly limited the application of such laws. Justice Wilson properly pointed out that a province may not duplicate the federal Criminal Code rules outlawing hate crime. Furthermore, Justice Wilson interpreted the provision in question as only prohibiting hateful words that lead to discriminatory activity under the provincial human rights legislation. Justice Wilson found that Stephen Boissoin’s letter to the editor was not hateful and did not cause discriminatory behaviour. It is difficult to conceive of a political or religious debate that would meet the two part test established in the legislation. Therefore, it is safe to conclude that in the future no religious or political debate will be found to be in breach of the current text of Alberta’s human rights laws.
Gerald Chipeur, QC