The Boissoin case: freedom gains a moral victory

By Colby Cosh - Friday, December 4, 2009 at 7:53 AM - 41 Comments

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 rebels gather

By Nicholas Köhler - Friday, November 6, 2009 at 9:10 AM - 3 Comments

Not long ago, after a Fraser Institute dinner at a Calgary hotel, Alberta Premier Ed Stelmach strolled into the bar to find Rod Love, Ralph Klein’s one-time chief of staff, huddled with some friends drinking. “Is this the conspiracy table?” Stelmach, grinning broadly, asked the group. The gallows humour got a laugh. Still, there’s truth in jest. Love and one of his drinking buddies that night, Alan Hallman, a one-time campaign manager to Klein, had been rumoured to back a political challenger who could soon sweep Stelmach aside.

For weeks, the Tories’ annual general meeting in Red Deer, with its mandatory Nov. 7 leadership review, has promised to be good theatre, equal parts fun and intrigue (Duck Soup meets CPAC). Ordinarily a routine feature of party governance, this vote, wherein 1,000 delegates cast secret ballots for or against a leadership race, is now important business. Stelmach could go, and everywhere observers have delighted in identifying pretenders in the shadows—former leadership hopefuls Jim Dinning and Ted Morton, Calgary entrepreneur and Dragons’ Den panellist Brett Wilson, even federal Environment Minister Jim Prentice. Continue…