Tuesday, 23 October 2012

Lund v. Boissoin - Canadian "Hate Speech" case

An interesting Canadian decision Lund v. Boissoin, 2012 ABCA 300 (CanLII) in the Court of Appeal of Alberta brings (hopefully)  an end to a case involving Freedom of Expression on Homosexuality which has dragged on for 10 years. 

Back in 2002 Pastor Stephen Boissoin wrote a letter to his local newspaper The Red Deer Advocate (set out in para 4 of the Judgment) expressing his views on Homosexuality and his concerns over the increasing acceptance of Homosexuality in Canada and in particular in Canadian Schools.  A Dr. Darren Lund, who describes himself as a human rights educator and activist decided to set himself up as Prosecutor of Mr Boissoin and brought a complaint against him under section 3 of the Alberta Human Rights, Multiculturalism and Citizenship Act which states

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 a 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 or family status 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.

The case was origninally brought before the Alberta Human Rights Commission  which is one of a number of Canadian quasi judicial bodies which have become notorious for their ignoring of basic principles of legal procedure or evidence.  In Lund v. Boissoin, 2007 AHRC 11 (CanLII) the claim was found proved and in Lund v. Boissoin, 2008 AHRC 6 (CanLII)  the commission made an extraordinarily wide ranging and draconian order as follows

a. That Mr. Boissoin and The Concerned Christian Coalition Inc. shall cease publishing in newspapers, by email, on the radio, in public speeches, or on the internet, in future, disparaging remarks about gays and homosexuals.  Further, they shall not and are prohibited from making disparaging remarks in the future about Dr. Lund or Dr. Lund’s witnesses relating to their involvement in this complaint.  Further, all disparaging remarks versus homosexuals are directed to be removed from current web sites and publications of Mr. Boissoin and The Concerned Christian Coalition Inc.

b. That The Concerned Christian Coalition Inc. and Mr. Boissoin shall, in future, be restrained from committing the same or similar contraventions of the Act.

c. That Mr. Boissoin and The Concerned Christian Coalition Inc. provide Dr. Lund with a written apology for the article in the Red Deer Advocate which was the subject of this complaint.

d. That Mr. Boissoin and The Concerned Christian Coalition Inc. shall request the Red Deer Advocate publish a copy this Order in the Red Deer Advocate and that they request their written apology for the contravention of the Act be published in the Red Deer Advocate.

e.  That Mr. Boissoin and The Concerned Christian Coalition Inc. shall pay to Dr. Lund an award for damages, jointly and severally, in the amount of $5,000.00.

This decision was strongly overturned in Boissoin v. Lund, 2009 ABQB 592 (CanLII)  when the case finally got before a proper Court namely the Court of Queen’s Bench of Alberta and the Queens Bench decision has now been backed by the Court of Appeal decision

Appeals Court Justice Clifton O’Brien concurred with the Queens Bench decision that Boissoin’s letter “was not likely to expose homosexuals to hatred or contempt within the meaning of the Alberta statute.”

Notable points in the Appeal Court decision are

60: Language which is offensive and hurtful to others does not necessarily qualify as hateful or contemptuous speech.

62:  Context is of particular importance when considering complaints based on sexual orientation and the impact on freedom of expression.  Most often, underlying these complaints are issues relating to matters of morality. It is acceptable, in a democracy, for individuals to comment on the morality of another’s behaviour. For this reason there will be a relatively high degree of tolerance for the language used in debates about moral issues, subject, of course, to limitations.  Anything that limits debate on the morality of behaviour is an intrusion on the right to freedom of expression.

[64] I would add that moral issues often also relate to the freedom of religion – another fundamental right protected by the Charter. A moral statement arising out of religious conviction may, in some cases, be seen as the dissemination of religious belief – an aspect of freedom of religion. Dickson J., as he then was, underscored this point in R v Big M Drug Mart Ltd, 1985 CanLII 69 (SCC), [1985] 1 SCR 295 at 336, 18 DLR (4th) 321:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.

The "Charter" referred to is the Canadion Charter of Rights and Freedoms  which is part of the Canadian Constitution Section 2 of which says

2 Everyone has the following fundamental freedoms:
(a)     freedom of conscience and religion;
(b)     freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication

Boissons Lawyer in Alberta Gerald Chipeur, Q.C. has been quoted as saying

“This was a watershed case, ...Very important, in terms of freedom of expression and religious liberty. Going forward, it will be extremely difficult, if not impossible, for religious or political debate to be found in breach of Alberta’s current human rights laws.”

“Christians and other people of faith should not be fined or jailed for expressing their political or religious beliefs. There is no place for thought control in a free and democratic society ....The tools of censorship should not be available to prohibit freedom of religious expression in Canada. The court rightly found that this type of religious speech is not ‘hate’ speech.”

Since the Canadian Charter is similarly worded to the European Convention on Human Rights this decision may also have relevance should any cases of a similar type be brought in Britain.  Fear of this type of time wasting gesture litigation was one of the main reasons why many people including myself opposed the idea of including Religious and Sexual Orientation Harassment within the Equality Act 2010 and I am glad we succeeded