The Alberta Court of Appeal tumbled another grenade into the thicket of Alberta human-rights law Wednesday, delivering its two cents’ worth on the case of Stephen Boissoin [PDF]. Boissoin, you may recall, was a Red Deer preacher who made use of the letters column of the local Advocate back in 2002 to declare his opposition to the “homosexual machine that has been mercilessly gaining ground in our society since the 1960s”.
As a piece of comedy, Boissoin’s letter has held up surprisingly well, with its asides to “Mr. and Mrs. Heterosexual” and its defiant warning that your child may be “the next victim that tests homosexuality-positive”. The epistle takes a disconcertingly militant tone, but it is also careful not to show contempt for homosexuals as a class, directing its fire instead at pro-gay “educators” and “activists” who “spread their psychological disease into every area of our lives”. After a decade, it’s still not quite clear whether the disease in question is tolerance, or homosexuality itself, or even just a civilized indifference to the domestic arrangements of one’s neighbour.
Anyway, in 2007 the Alberta Human Rights Commission ordered Boissoin to “cease publishing disparaging remarks about gays and homosexuals” and to pay $7,000 in damages and costs. In 2009 I wrote about a Queen’s Bench review of the finding that went about as badly for the Commission as can be imagined. Interestingly, the Court of Appeal has now reversed the reviewing judge, E.C. Wilson, on a few points.
(An example, for the benefit of those who enjoy legal minutiae: the original Commission process devoted a lot of attention to the assault of a gay teenager in Red Deer that happened a couple of weeks after Boissoin’s letter ran, but that had no other apparent connection to the letter. Wilson, probably a bit skeptical that juvenile anti-gay night-riders are big readers of the editorial pages, had found that this wasn’t sufficient evidence, in itself, that the letter had incited hatred. Appeal Court Justice Clifton O’Brien, by contrast, handed a small victory to the appellant, pointing out that nothing in Alberta’s human rights law requires a statement of opinion to be followed by some act of discrimination. Speech can conceivably be “discrimination” in itself.)
The appeal court’s (unanimous) decision, however, comes out strong for freedom of speech on several grounds. Neither the original Commission panel nor Justice Wilson, argues Justice O’Brien now, paid quite enough attention to the newspaper context of the offending letter. The correspondence column of a newspaper has a special free-speech function, which includes exposing fringe and unpopular opinions to rebuttal; the existence of Boissoin’s opinion, since he was a religious leader and political activist, was newsworthy in itself; and it is not clear that Boissoin could have phrased the same purely political opinion in any more acceptable or polite way than he chose.
It would seem, O’Brien notes, that it was the substance of the opinion itself the Commission didn’t like. But a human rights commission, in policing discrimination, must be careful not to find itself in the business of trying to abolish error per se. Such a mandate could properly be referred to as inquisitorial.
It is only after all this, however, that the Court of Appeal decision really gets interesting. Justice O’Brien springs like a wolverine upon the longstanding and totally bizarre “paradox” near the very top of the Alberta Human Rights, Multiculturalism, and Citizenship Act. Here’s the start of section 3 of the Act as it reads today (“sexual orientation” having been explicitly added in 2010):
3(1) No person shall publish, issue, or display or cause to be published, issued or displayed before the public any statement, publication, notice, sign, symbol, emblem, or other representation that
(a) indicates discrimination or an intention to discriminate against a person or class of persons, or
(b) is likely to expose a person or a class of persons to hatred or contempt
because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or class of persons.
(2) Nothing in this section shall be deemed to interfere with the free expression of opinion on any subject.
Don’t worry: it is standard for you to clutch your skull and shout “Wait, what?” after reading both sections. To put it the way Justice O’Brien does: subsection 3(2), which would appear to negate 3(1) entirely when anything that could be called an “opinion” is involved, “raises a formidable challenge to anyone seeking to interpret and apply it”. “How does one give meaning to each subsection when they appear, on their face, to collide?” he asks. Good question!
The answer in the caselaw, given by Alberta Queen’s Bench Justice John D. Rooke in a 2001 case, is that subsection 3(2) is “an admonition to balance the two competing objectives” of preserving free expression and protecting minorities from discrimination. (Rooke, now the Associate Chief Justice of Alberta’s Queen’s Bench, gained a national profile a few weeks ago when he issued an extensively researched field guide to “Freemen” and other crackpots whose legal theories from Planet Goofball are balling up the court system. Full disclosure: the successful defendant in the 2001 case was Alberta Report magazine, where I was an editor at the time.)
There is just the one teensy problem with Rooke’s theory: subsection 3(2) isn’t in any way an “admonition to balance”. It’s an absolute, uncategorical admonition not to interfere with free expression of opinion. There is no other possible way to read it. “In my view,” writes O’Brien, “the words ‘nothing in this section’ cannot be interpreted reasonably as sometimes permitting interference with the free expression of opinion.”
The only way to reconcile the clashing subsections, Justice O’Brien says, is to accept that opinions as such—like Boissoin’s—really are unconditionally exempt from punishment or suppression under human rights law. He adds that this still leaves a lot of possible material for the Alberta Human Rights Commission to deal with under 3(1). The traditional stuff of human rights legislation—say, a public notice on the door of a pub that said “No blacks, no dogs, no Irish”—does not qualify as opinion. Neither would “mere invective”, “directions and commands”, lies or misstatements about matters of fact, or advocacy of discriminatory activities.
This leaves us in a slightly unsatisfactory place, with the new protection for “opinion” likely to provide a interpretive plaything for lawyers (and for amateurs with time on their hands who like to play Perry Mason at the AHRC). O’Brien dismissed the appeal against Boissoin, and adjudged that his letter, taken as a whole, qualified for an “opinion” exemption. But there are statements of fact in the letter; indeed, it arguably consists mostly of factual assertions, such as “Your teenagers are being instructed on how to perform so-called safe same-gender oral and anal sex”.
The next time an old-school evangelical and a gay academic butt heads in front of the AHRC, will it find itself becoming a trier of political and historical facts, reams at a time? That sounds expensive, for the taxpayer and potentially for Alberta media. (And, N.B.: there is no reason to think that does not include independent Alberta-based bloggers. Full disclosure: I used to be one of those, too!) I am pleased that some teeth have been implanted in subsection 3(2); the prior treatment of it by judges amounted to pretending it didn’t exist. But one hopes the cure isn’t more harmful to free expression than the disease.