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

Religious Persecution and a Right to Asylum in the European Union

A decision by the European Court of Justice (nb NOT the European Court of Human Rights) will have an impact on how applications for Refugee Status are considered in European Union Countries.

The case Bundesrepublik Deutschland v Y & Z [2012] EUECJ C-71/11  involved two Ahmadi Muslims who went to Germany from Pakistan and were threatened with deportation.  They appealed to the ECJ on the basis that the German Courts were wrongly applying European Council Directive  2004/83/EC which establishes a common definition of refugee status throughout the EU.  In Pakistan the Amhadi Muslim community suffers a considerable degree of Religious persecution including the fact that they are not allowed to call themselves Muslims or call their Mosques "Mosques".  

The German Courts originally decided that the two could be deported because they would still be able to have their beliefs the law merely prevented them publicly practicing their beliefs.  As the ECJ put it in para 42 of its decision

there could be deemed to be persecution relevant for the purposes of the right of asylum only where there was interference with the ‘core areas’ of religious freedom, but not where there were restrictions on the public practice of faith,

The ECJ disagreed with this approach and decided that a fear of religious persecution was well founded where (para 81)

it may reasonably be thought that, upon his return to his country of origin, he [the refugee] will engage in religious practices which will expose him to a real risk of persecution. In assessing an application for refugee status on an individual basis, those authorities [ie immigration authorities] cannot reasonably expect the applicant to abstain from those religious practices.

The point that merely being allowed to pray privately is not enough to prevent persecution is particularly interesting because it goes contrary to the arguments of the UK government in the 4 Religious Freedom cases currently before the European Court of Human Rights, the UK Government and indeed UK courts have taken the view that Religious practice is entirely private and perhaps this case may have some relevance in causing that view to be questioned. 

The logic of the ECJ decision is similar to that in a decision made by the UK Supreme Court in HJ (Iran) v Secretary of State for the Home Department (Rev 1) [2010] UKSC 31 - which related to Gay Asylum seekers from Iran.  The Supreme Court had held that Homosexuals had to be allowed to practice Homosexuality openly otherwise they were being persecuted and that logic should also be applied to the practice of a religion

Doe v Holy See - Oregon Decision

Back in July 2010 I  blogged on the case of Doe v Holy See   which was an attempt in the US to sue the Holy See (AKA:  the Papacy, the Vatican) over the alleged abuse of the Plaintiff by a Catholic Priest.  As I indicated in that Blog and I noted in a  follow up Blog in August 2010  this was going to be hard to do. 

According to reports in other Blogs such as  Vatican Insider   and  Life Site News  the cases against the Holy See have now been thrown out by the Judge.  I have tried to obtain copies of the Judgment but have been told by the Court that because there are other claims still continuing and it is only an interim judgment on an aspect of the overall claim there is no definitive judgment I can refer to to check the reports.

With that "Health Warning" having been given the decision appears to be based on the, not surprising finding by the Judge that

“There are no facts to create a true employment relationship between Ronan [the former priest] and the Holy See,”

Pussy Riot in a British Church

The news that members of  Pussy Riot the Russian Punk Rock band have been jailed for "performing" in Christ the Saviour Cathedral in Moscow has been widely criticised but I do feel that the question needs to be asked whether what Pussy Riot did would be considered legal in any country.

They sang and danced in front of the Iconostasis which is one of the holiest parts of an Orthodox Church whilst making the sign of the Cross and prostrating themselves in a parody of prayer.  According to the translation given on the You Tube Video (and I do not speak Russian so I cannot confirm it) the song they sang went as follows

St. Maria, Virgin, Drive away Putin
Drive away! Drive away Putin! (end chorus)

Black robe, golden epaulettes
All parishioners are crawling and bowing
The ghost of freedom is in heaven
Gay pride sent to Siberia in chains

The head of the KGB is their chief saint
Leads protesters to prison under escort
In order not to offend the Holy
Women have to give birth and to love

Holy shit, shit, Lord's shit!
Holy shit, shit, Lord's shit!

(Chorus)  St. Maria, Virgin, become a feminist
Become a feminist, Become a feminist  (end chorus)

Church praises the rotten dictators
The cross-bearer procession of black limousines
In school you are going to meet with a teacher-preacher
Go to class - bring him money!

Patriarch Gundyaev believes in Putin
Bitch, you better believed in God
Belt of the Virgin is no substitute for mass-meetings
In protest of our Ever-Virgin Mary!

(Chorus)  St. Maria, Virgin, Drive away Putin
Drive away! Drive away Putin!  (end chorus)

So by any definition the incident involved Pussy Riot shouting obscenities in a Church whilst worshipers were there, disrupting a service, shouting insults about the Orthodox Church and parodying worship.

In Britain that would constitute a criminal offence contrary to 

s2  Ecclesiastical Courts Jurisdiction Act 1860

Penalty for making a disturbance in churches, chapels, churchyards etc
Any person who shall be guilty of riotous, violent, or indecent behaviour in England in any cathedral church, parish or district church, or chapel of the Church of England, or in any chapel of any religious denomination, or in England in any place of religious worship duly certified under the Places of Worship Registration Act 1855, 18 & 19 Vict c 81, whether during the celebration of Divine service, or at any other time, or in any churchyard, or burial-ground, or who shall molest, let, disturb, vex, or trouble, or by any other unlawful means disquiet or misuse any preacher duly authorised to preach therein, or any clergyman in Holy Orders ministering or celebrating any sacrament or any Divine service, rite, or office in any cathedral church or chapel, churchyard, or burial ground shall on conviction thereof before two justices of the peace, be liable to a penalty of not more than level 1 on the standard scale, or may, if the justices before whom he shall be convicted think fit, instead of being subjected to any pecuniary penalty be committed to prison for any time not exceeding two months.

Under s28 of the Crime and DIsorder Act 1998 a "Religiously Aggravated Offence" is committed when 

 (a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's membership (or presumed membership) of a racial or religious group; or
(b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.
 "Religious Group" is defined as
"a group of persons defined by reference to religious belief or lack of religious belief."

So Pussy Riot could have been convicted in England of a Religiously Aggravated Offence probably either s5 or s4A of the Public Order Act. Section 4A carries a 2 year maximum sentence when it is an aggravated offence and s5 caries a fine 

Intentional harassment, alarm and distress - Public Order Act 1986, s. 4A
(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he–
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
thereby causing that or another person harassment, alarm or distress.

Harassment, alarm and distress - Public Order Act 1986, s. 5

(1) A person is guilty of an offence if he–
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

There is also the offence of Aggravated Trespass under s68 Criminal Justice and Public Order Act 1994 which carries a sentence of up to 3 months imprisonment and which says 

Offence of aggravated trespass.

(1)A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect—
(a)of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,
(b)of obstructing that activity, or
(c)of disrupting that activity

Since the words "sung" were not threatening the Pussy Riot group could not have been convicted in Britain of the Offence of Incitement to Religious Hatred  but they would still have faced the likelihood of prosecution and possible imprisonment though not for the possible sentence that they received in Russia

Whilst I personally think the sentence was excessive there is one aspect to the incident which has not been commented on in the British media and may explain why Orthodox believers in Russia were quite so outraged.  The Cathedral of Christ the Saviour is of special importance.  It is a reconstruction of a Cathedral which was deliberately destroyed in 1931 as part of the persecution of Christians in the Soviet Union .  During this persecution groups such as the League of Militant Atheists often desecrated Churches and engaged in parodies of religious ritual whilst singing obscene songs.  

In the West we seem to have almost forgotten Communism and the evils it brought but people in Russia have not.  I notice that in Court one of the Pussy Riot demonstrators wore a T Shirt bearing a clenched fist and the words "No Pasaran" which was a slogan of the Spanish Communist Party during the Spanish Civil War.  It was a bit like appearing in a German Court wearing a T Shirt with a Nazi Slogan.  In those circumstances perhaps it is not surprising if Russians have taken a rather less rosy eyed view of the incident than that of the Western media

 

 

B&B Owners and Sexual Orientation - Canada

A recent case in Canada deals with almost exactly the same legal question as was considered by the Court of Appeal in February in the case of  Bull v Hall & Preddy [2012] EWCA Civ 83 which I blogged about  here 10 February 2012.   

The issue in both cases involved the Christian Owners of a Bed and Breakfast establishment refusing to let out a double bed room to a Same Sex Couple.  

 In Eadie and Thomas v. Riverbend Bed and Breakfast and others (No. 2),2012 BCHRT 247   the Christian owners of a bed and breakfast in British Columbia have been ordered to pay around $4,500 in damages after they refused to rent a room to a same sex couple.

Brian Thomas and Shaun Eadie had reserved a room at the Riverbend B&B in Grand Forks in June 2009, but owners Les and Susan Molnar cancelled the reservation after realising they were a homosexual couple.  Thomas and Eadie then filed a complaint with the British Columbia Human Rights Tribunal  which ruled in their favour..

Tribunal member Enid Marion ordered the Molnars to “cease and desist the discriminatory conduct,” (apparently they had already closed the B&B down in September 2009 as a result of the incident.)

Marion agreed with the two men that the Molnars violated section 8 of the B.C. Human Rights Code , which states that it is a discriminatory practice to

“deny to a person or class of persons any accommodation” because of “sexual orientation.”

He ordered them to pay each man $1,500 for damages to “dignity, feelings and self-respect,” in addition to their travel expenses and lost wages for the tribunal proceedings. In the judgment he wrote

“Having entered into the commercial sphere, the Molnars, like other business people, were required to comply with the laws of the province ... that prohibits discrimination on the basis of sexual orientation,”  

The legal reasoning in this Canadian decision seems indistinguishable from the reasoning in the English "Bull v Hall " case in February

Catholic Bishops and Vicarious Liability for Priests - 2

The case of JGE v The Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 (12 July 2012) is a follow on from the same case in the High Court JGE v The English Province of Our Lady of Charity & Anor [2011] EWHC 2871 (QB) (08 November 2011)  which I blogged about last year


The issue in the case is whether the Portsmouth Diocese could be held Vicariously Liable for alleged Child Abuse occurring 40 years before (I'll return to that point later).  The Claimant alleges she was raped when she was 6 by a Priest of the Diocese.  The Catholic Church does not regard Priests as being its employees but rather as being "Office Holders" and usually in law there is no liability attaching to the acts of a Office Holder, this was for example the legal position as regards Police Constables and it was not until the Police Act 1964 (now s88 the Police Act 1996  )that Chief Constables were made vicariously liable for the wrongful acts of Police Constables under their command. However this act did not change the general legal point that office holders are regarded in law as not being employees and hence as not having an employer who can be held vicariously liable for their acts.


In many other cases involving allegations of sexual abuse by Catholic Clergy the relevant Diocese have not argued the vicarious liability point but agreed that the Court could approach the issue "as if" the Priest in question was an Employee; in this case however the Diocese decided to argue the issue as to whether the Diocese was legally liable and it was argued as a preliminary issue. The Court of Appeal obviously had reservations about this approach as Lord Justice Ward said in para 6
I am far from convinced that trying a preliminary issue is the best way to deal with questions of this sort. 

The Court was also aware that on the facts alleged the Diocese itself was not at fault and did express and indeed Lord Justice Davis noted in para 133 that the entire principle of Vicarious Liability raised questions about
the extent to which, as a matter of policy, an innocent defendant should (without fault) be made to bear responsibility for the wrongful acts of another.


However the Court did decide that even though a Catholic Priest was not an Employee of his Diocese or his Bishop nevertheless the Diocese was vicariously liable for the alleged acts of the Priest and it did accept that in this decision it was extending the legal concept of Vicarious liability.  The ruling has implications for all forms of voluntary organisations since it opens them to the possibility of being sued for the actions of non employees such as volunteers, school governors etc.


More worrying for me is the fact that in this case the Defendant is having to defend itself against allegations of abuse occurring 40 years ago at the hands of someone who is dead.  The allegations are entirely based on the evidence of the Claimant and the accused Priest was dead before the allegations were made. This  puts an impossible burden on any organisation to defend itself.


The Limitation Act 1980  is supposed to prevent claims being brought after six years but the Courts have interpreted it in such a way as to allow sex abuse claims to be brought decades after the alleged events and this makes having a fair trial impossible and circumvents the intention of Parliament when it passed the Limitation Act.  It opens Churches, the Boy Scouts, Barnardos and State Care Homes to the danger of unjustified legal claims in which the only evidence is unsupported allegations made against persons who are dead and unable to defend themselves or their reputation


It is ironic that this decision was made just a week before the High Court begins to hear a case against the UK Government for alleged misconduct in the Mau Mau uprising more than 50 years ago.  By allowing that case and the Portsmouth case to proceed the Courts have subverted the Limitation Act.  Parliament does need to have another look at the entire issue of limitation; surely there has to be a point where allegations are so old that it is simply wrong to allow them to proceed to trial.

Gay ‘marriage’, polygamy and female inequality: where’s the link?

http://www.lapidomedia.com/gay-marriage-polygamy-and-female-inequality-where-s-link