The Boissoin case: freedom gains a moral victory

by Colby Cosh

So how stands freedom of the press in Alberta after Thursday’s Queen’s Bench decision tossing out the Boissoin human-rights panel ruling [PDF]? Justice E.C. Wilson’s reasons establish two big things, pending some higher-level judicial review of Alberta’s human-rights regime:

  1. The Charter of Rights can’t be used willy-nilly by content creators in magazines and newspapers as a shield against tribunal oversight, but
  2. The tribunals have to confine themselves strictly to the powers granted them by statute, defer to Charter values, respect the presumption of innocence, and in general act a lot less like a cross between a military junta and a three-ring circus.

In 2002 Red Deer preacher Stephen Boissoin had written a sweaty, sulfurous letter about the Great Gay Conspiracy to the local daily paper (pause for ironic smirk: it’s called the Advocate). Among other things, Boissoin denounced the spectacle of “men kissing men”, which suggests he may not know his way around the synoptic Gospels too well. In any event, a panel of the Alberta Human Rights and Citizenship Commission found him guilty of discrimination-by-the-word, and he was subjected to a fine, prior restraint on his future speech, and a demand for a written apology.

Justice Wilson found that while the speech provisions in the Alberta human rights statute pass Charter muster under the principles of the Supreme Court’s Taylor decision, he put a lot of practical problems in the path of future complainants. A province, Wilson observed, isn’t allowed to duplicate the Criminal Code provisions against hate speech. It’s only allowed to suppress hateful speech that can also be shown to encourage discrimination in the specific areas that lie within provincial powers and are enumerated in the statute—i.e., housing, employment, access to goods and services.

Wilson thus ended up throwing several witnesses who testified against Boissoin overboard: the ex-cop who thought Boissoin’s anti-gay babblings might make teens “act out”, for example, and the shrink who warned that the Reverend’s letter might provoke a second Columbine. (Untold thousands have read the letter who wouldn’t otherwise have seen it, precisely as a consequence of the proceeding against Boissoin, but it doesn’t yet appear to have played a role in any school shootings.) Wilson has thus made expert evidence in future tribunal proceedings a lot harder to come by: the logic of his decision suggests that complainants will no longer be able to round up every bleeding-heart social scientist or self-styled hate expert they can find, but will have to provide evidence of potential economic impacts from hate speech.

Wilson also reaffirmed that the standard of judicial review for Alberta tribunal rulings is a low one, requiring the appellant to raise questions of mere “correctness” in matters of law; he beat up the panel for some of its one-sided interpretations of the evidence against Boissoin; he emphasized that hate speech isn’t hate speech under Taylor unless it’s “unusually strong” and appeals to “deep-felt” emotions; he notes that tribunals must take note of not only the majority decision in Taylor, but also not-yet-Chief Justice McLachlin’s monumental dissent warning against vagueness and subjectivity; he observes that Taylor also requires hate speech to have been repetitive; he suggests that the law does not generally concern itself with “puny anonymities”, but only with speech that is likely to be influential and dangerous in some way; and he notes that the AHRCC panel had no statutory warrant for any of the punishments it levied on Boissoin.

And believe it or not, I am leaving some criticisms out. The Commission has a Herculean amount of procedural and constitutional cleanup ahead if it hopes to scrutinize speech and press activity in Alberta. Which is good. It would be better still for the legislature to take the “fundamental freedoms” in the Charter as seriously as other provinces do, and eliminate the Commission’s jurisdiction over the press altogether, but it seems that won’t happen while Ed Stelmach is premier.

The Boissoin case: freedom gains a moral victory

  1. He also called the assault on the gay male–supposedly by one of Boisson's teen charges–"alleged", which is interesting because I was not aware that it was at all in question. That seems to be the lynch-pin to the original judgement; that by balance of probabilities the letter's publication was seen to have done actual harm.

    • There was also no evidence that the letter motivated the individuals who committed the assault, if it did take place.

  2. Another piece of excellent reporting, Colby. Temperate. Factual. Informative. Good-humored. Wish the writings of your colleagues Potter, Coyne and Steyn showed similar balance. Too often theirs is the finger-wagging natter of the morally indignant. I cringe to think how they may approach Justice Wilson's eminently sound judgement. Yesterday's ruling from the Queen's Bench is a major advance toward curbing the excesses of the country's self-styled "human rights" regime. I only hope Steyn and company don't undercut it with their righteous rhetoric.

  3. I was just looking for more info about the Boissoin case and there is very little out there. Amazing how msm has mostly ignored this and I had to look at blogs instead. You would think this case would be of some interest to people but what do I know.

    Sounds like Boissoin was able to raise enough money to take his case to proper court. Good for him. I would like to see more cases in courts like this and see what they make of hrc behaviour across Canada.

  4. Get your facts straight Colby.

    My letter stated that "Your children are being warped into believing that same sex families are acceptable; that men kissing men is appropriate." It referred to the use of gay materials in the curriculum. Obviously it was a sort of reference for visualization of kids being taught that these behaviours, in a romantic sense, are normal.

    Such a intelligent guy and you miss that??? I don't think so.

    Guess I'm not the only one with an agenda.

    • "Sweaty" and "sulfurous", though, are rigorously accurate. I personally fact-checked them.

      Now if you'll excuse me, the visualization of men kissing men has caused a homosexual erotic frenzy to overcome me, and I'm going to go kiss a man for the first time.

      • I am really hoping he doesn't ask me to discuss this issue further over daiquiris at Boots 'n' Saddle.

    • Many who advocate less restrictions on hate speech sometimes talk about the value of being to respond and counter those who practice discrimination. If you are who you claim, hopefully I speak for a great many when I say:

      The court was far too polite and restrained when it called your letter jarring, offensive, bewildering, puerile, offensive, nonsensical and bewildering. If you have any redeeming qualities as a person, they are lost behind your ludicrous hatred. It is shameful that you were ever given employment where you were in a position of influence over young people, as I understand it this was rectified.

      May the God you claim to believe in sees fit to give you the wisdom to see the folly of your ways.

    • How about 'thank you for defending my freedoms Colby'?

      • Oddly enough, this confirms the truth that free speech is meaningless unless unpleasant people saying unpleasant things are free as well.

        Derek

    • Well, that was graceless. I hope this isn't really Stephen Boissoin.

      But if it is: a lot of us have been holding up your case, Rev. Boissoin, as the ne plus ultra of HRC abuses. When you comment on a post by one of your most ardent defenders and take the tone of an ungrateful ass, it undercuts your credibility, and ours, in the minds of our usually-oblivious fellow citizens.

      I really hope this isn't you.

      • Meh. I find Boissoin's homophobia appalling. He's a bigot and and ass. So, if this was who he said he was, there is no change in my opinion.

        Doesn't change the fact that the HRC had no business stepping in.

  5. It's interesting the extent to which the QB seems to contradict the Re Kane (itself a court decision) in how the Code prohibits discriminatory expression.

  6. I would say, Mr. Cosh, that someone who thinks the Rapture is an essential part of Christian doctrine really ought not to be lecturing ministers on what it says in the Bible. But that said, thanks for this piece. You may take some satisfaction in knowing that I heard this news for the very first time from you, and I don't exactly live in a cave. Keep this up and we'll be calling you "Scoop" Cosh.

    • Yeah, no, I never said or implied anything of the sort about the Rapture. (Evangelical Protestants in North America believe a lot of wacky stuff that isn't "essential" to Christian doctrine. A LOT.) But I appreciate the encouragement.

  7. They'd have very little to complain about, though. Of all the well known admin hate speech cases that weren't neo-nazis using phone lines, this was the only one where hate speech had been found to be evident. One thing that's been shown time and time again is how high the bar for hate speech is actually set.

  8. You asserted that Preston Manning believed in the Rapture, on no obvious grounds other than that he is famously a Christian. But, yes, please, be encouraged. You're doing an excellent job that a lot of us really appreciate.

    • I grant that you may be unfamiliar with the meaning of the term "probably", ebt, but the piece clearly says "probably". Many, many evangelical Christians do believe in the rapture. Mr. Manning identifies himself as an evangelical Christian. Wendell Grout, the pastor at Mr. Manning's church, is a well- and widely-known preacher of premillenialism (which features the "Rapture" in popular parlance as a central element).

      All of these contribute to the balance of probabilities that Mr. Manning is a believer in the Rapture. Cosh is correct.

      • Er, plus his father was the central figure in a strongly dispensationalist religious movement for the better part of 30 years, and he has specifically said he remains within the same tradition. Sorry if I didn't preface a cheap joke with a course in Alberta History 101. Manning does not discuss his faith in fine detail, but it would be news if he didn't believe in the Rapture.

        • The fact hat both Stephen Boissoin and ebt have chosen your cheap jokes as loci for their objections leads me to a Grand Unifying Theory about evangelicals: they can't distinguish a literal remark from a trope. Meaning they can't tell a parable from history, they conflate ceremony and incantation, and they don't know a punchline when they see one. Or are one.

          'Course, I've known plenty of evangelicals who had a sense of humour, so there's always the chance these are outliers.

  9. Assuming the Stephen Boissoin who posted above is the Stephen Boissoin whose case forms the basis for Colby's storyline, then I have to say this is a great development! Aside from determining what's a bad or a good opinion, or a right or a wrong one, we now have — thanks to the miracle of electronic technology, PTL — a way to hear from the subject himself relative to content in a news story. Free speech is vital, and with the unprecedented means to exercise it via new technology an exciting new way to engage in public discourse is opening up. Let's not allow those nincompoops, opportunists, and political sell-outs to derail our march toward free and open debate in the marketplace of ideas by catering to special interests.

    • Sure. Write a letter almost identical to Boissoin's, substitute "Jew" for "homosexual" and see how quickly that's gets printed in the local paper.

      • Jew the ethnic group, or Jew the religion?

      • I think McClelland already tried that didn't he? So did you Tiggy, in the comment section on his blog. (Something about Judaism being inherently racist. I'm sure you remember.) Did anyone file a human rights complaint against you? Didn't think so.

      • You're right! Within our multicultural mosaic, there is a pecking order, with some groups protected, while others are fair game, seemingly. Consider these 38 words lifted from a chapter in Elie Wiesel's 1968 memoir Legends of Our Time [Shocken Books: New York, p. 142] entitled "Appointment with Hate." They underscore the primacy of hate, by pointing toward the way Jews ought to relate to Germans: "Every Jew, somewhere in his being, should set apart a zone of hate — healthy, virile hate — for what the German personifies and for what persists in the German. To do otherwise would be a betrayal of the dead." Were we to experimentally replace, say, "Jew" with heterosexual and "German" with homosexual, and then publish the result, this would, I'm sure you'll agree, rightly be denounced as advocating hatred for the members of one group by another. Certainly, if the names Jew and German were reversed in this text, that would, I believe, also be denounced as advocating hatred for the members of one group by another. As it is, Elie Wiesel is touted as an unimpeachable moral authority; which seems to suggest that at least some forms of bigotry are considered perfectly OK.

  10. Quite pleasant to find news first at a news magazine. Surprised in fact. Congratulations Mr. Cosh and Macleans. You beat the blogs.

    There may be a future in journalism after all.

  11. By the standards of the "hate law" proponents this blog a number of the posts may lead to hate against others, might lead to violence and persecution of others by those who read these comment. Oh dear, oh dear, see what this freedom of speech might lead to. Maybe. Possibly. You can't rule it out. We can't take the chance. File human rights charges against the posters and Colby Cosh before the Nazis take over.

    • It's incredibly important to intelligent debate to realize how absolutely untrue this is. Reductio ad absurdum is a rhetorical flourish, not an argument.

      • @MikeT: I think this is where someone says “Whoosh!”

        “Oh dear, oh dear, see what this freedom of speech might lead to”, was an obvious (to me) parody of the situation via Chicken Little. He was parodying the same reductio ad absurdium you mention.

        Enjoyed the article, thanks.

        • I think the first sentence is illustrative of his overall attitude, and it an inaccurate statement repeated far too often. There is no reason to suspect this blog contains actionable ate speech, yet many people like to create a boogeyman coming after them by pretending it does.

  12. So, you hate evangelicals, therefore everyone you dislike must be an evangelical. You have the same grounds for thinking that Preston Manning believes in the Rapture as you do for thinking that I'm an evangelical, viz., none, except for your own bigotry. Well, the good news is, you could be half right. The bad news is, that's the upper limit.

  13. I'm not sure if this remark is directed at Colby, who made in the Preston Manning remark, or at me for labeling you an evangelical. If the latter, you're right: I had nothing better to go on than surmise, and anyway I regret lumping you in with Boissoin. Sorry about that.

    Sticking to the content of this thread, I do think that both you and Stephen Boissoin willfully misinterpreted Colby Cosh's jokes as (mis)statements of facts, which makes you seem like humourless pedants. ("Wait now…did anyone actually SEE the chicken cross the road?")

    I don't hate evangelicals, nor do I dislike you.

  14. 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.

    Gerald Chipeur, QC

  15. Boissoin v Lund

    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.

    Gerald Chipeur QC

  16. Boissoin v Lund

    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

  17. The man is vile scum.

    Under no circumstances should he be praised.

  18. Find out who Steve was and is

    ***

    I don't know if they're taking down my comments on the matter, but it needs to be said again and again: who he is is low life scum.

  19. This decisions was based upon faulty reasoning regarding the division of powers. The publication of newpapers comes under provincial jurisdiction, so provincial Human Rights Acts may legislate against hate speech within them. The hate speech does not also have to be intended to provoke discrimination in an additional area of provincial discrimination.

  20. I disagree with Boission's views on homosexuality etc., but I like this decision from the court. I closely followed the Steyn/Maclean's case and others like it, and it was clear that these commissions had gotten completely out of control on the evidentiary side of things. When the HRCs were originally created, they were more in the nature of traditional administrative tribunals, and they were deciding things like whether a landlord had refused to rent to somebody because of their race. But when they got into the hate speech arena, that was an arena that had traditionally been under the aegis of courts and constitutional litigation. If you get into that area, the stakes are so high, IMO, that you need vigorous evidentiary standards. And in both the Boissoin and Steyn cases, the evidentiary standards were anything but rigorous. In that sense, this decision is a case of the chickens coming home to roost.

  21. So I can say that Jews are involved in a conspiracy to destroy western democracy and that Macleans's is a Zionist organ, because I have the freedom of speech to say so… NOT!!

    • You just did.

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