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Free speech in Alberta has suffered
a serious, and unexpected reversal, in the guilty judgment
handed down by an Alberta Human Rights Panel on Stephen
Boissoin.
His critique of homosexuality in letters
published by the Red Deer Advocate had been the subject
of a human rights complaint and was declared "hate
speech" by panelist, Lori G. Andreachuk.
It is a bad situation. Fortunately,
there appear to be avenues of appeal to restore free-speech
sanity to Alberta.
After 25 years of Canadian jurisprudence
informed by the Canadian Charter of Rights and freedoms,
Canada is divided over liberty.
On one side are those who agree with
the great liberal John Stuart Mill, that truth is best
discovered through free debate. This belief is foundational
to Canada's parliamentary system, and to the U.S. Constitution,
as befits our common British heritage.
Such debate requires however, freedom
to speak constrained only by laws of libel and incitement
to do harm. Its chief Canadian prophet is Joseph Howe,
a journalist and later premier of Nova Scotia, who in
1834 was charged with seditious libel -- the crime of
criticizing the government. Although guilty by law,
what he said was true, and a jury refused to convict
him.
Since then, the law has evolved and
people accused of libel have also successfully used
such defences as their sincere belief something was
true, or that their controversial opinion could be accepted
by a reasonable person.
The exception under federal law is speech
found to be hateful under the Canadian Criminal Code.
The bar is set high, though, and the Crown must prove
intent to incite hatred.
In another corner, are followers of
a more recent gospel, one having less regard for truth
than the effect of truth -- or error -- on the listener.
To these, Canadians' hard-won right to speak freely
is secondary to an assumed right of a hearer not to
be offended, or exposed to hatred and contempt. At first,
such civility may sound desirable. However, Andreachuk's
judgment in Boissoin's case illustrates the pitfalls.
Boissoin, a youth pastor, was outraged
when the Alberta government agreed to an Alberta Human
Rights Commission invitation to fund gay-themed textbooks
in schools. These were to teach homosexuality was "normal,
necessary, acceptable and productive."
In 2002, when gay marriage was also
a hotly debated issue, he did not lack for company and
wrote letters to the Red Deer Advocate, urging those
who thought as he did to join a "war" on what
he called the homosexual agenda.
He says he did it to stimulate debate,
and it was very strong. But military words notwithstanding
-- politicians also make wars on things such as drugs
or poverty -- his speech was far short of inciting hatred
by the standards of the CCC.
I surmise that's why he was not brought
to court, but to an Alberta Human Rights tribunal, where
the prosecution has a far lower bar to jump to get a
conviction. Boissoin's defence that he was engaged in
political debate, and that religious speech is not restrained
by hate-speech statutes, was summarily dismissed. And,
with precedents cherry-picked from several Supreme Court
and commission decisions, Andreachuk set aside a specific
free-speech protection in the Alberta human rights act,
concluding: "It cannot be the case that any speech
wrapped in the 'guise' of politics or religion is beyond
reproach by any legislation but the Criminal Code."
And, the eradication of hate speech . . . is paramount
to the freedom Mr. Boissoin . . . should have to speak
(his) views."
The decision has an absurd effect. If
to even challenge government spending to promote homosexuality
as desirable or productive is considered to be holding
gays in contempt, how can political debate take place,
never mind free expression for those who see it in religious
terms? This is just to prefer one view over another,
give it the force of law, and effectively reinvent seditious
libel.
Three grounds of appeal suggest themselves.
First, human rights law was intended to deal with housing
and employment issues, and was never meant to restrict
political debate on public policy. No matter how Andreachuk
tries to slip a new skin on it, that's what Boissoin
was up to. If you don't take that position, you become
stuck with laws you can't change.
Second, Ottawa has staked out the hate-speech
arena. Ingenious as Andreachuk's argument is by which
she seeks to gather it under Alberta's purview, I doubt
it would withstand scrutiny from a higher-court judge.
(And, one must assume the province would not wish it,
lest it be thought trying to stifle debate; we have
had this argument before, with the Aberhart government.)
Finally, if I am right that this isn't
hate speech, I can't see an appeal-court judge going
along with a tribunalist in making it illegal to say
in Alberta, what remains lawful under a federal statute.
Boissoin has 30 days to launch an appeal.
nhannaford@theherald.canwest.com
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