House of Commons votes to repeal “hate messages” section of the Canadian Human Rights Act

In June 2012, the House of Commons passed Bill C-304, which would amend the Canadian Human Rights Act[1] by repealing section 13 of the Act. Section 13 makes it a “discriminatory practice” to communicate hate messages by telephone or on the Internet.[2] Sponsored by Brian Storseth, Conservative MP for Westlake St. Paul in Alberta, the private member’s bill was sent to the Senate on June 7, 2012.[3] The bill provoked thoughtful debate in the House of Commons. Though it passed in a free vote, government support for the amendment – and opposition resistance – were near-unanimous. The Senate may debate and vote on Bill C-304 by the end of 2012.[4]

Mr. Storseth says that Bill C-304 will help protect and enhance freedom of expression. He argues that section 13 of the Canadian Human Rights Act impedes freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. He points to serious doubts about the constitutionality of section 13. For example, law professor Richard Moon wrote a report in 2008 that concluded the Criminal Code was sufficient to address hate speech. The report recommended the repeal of section 13.[5] Storseth also mentions a 2009 case that found section 13 unconstitutional; he seems to mean the Canadian Human Rights Tribunal’s decision in Warman v Lemire.[6]

Responses to Bill C-308

Irwin Cotler, Liberal MP and former Minister of Justice, takes issue with Bill C-304: “the premise underlying the bill, while well intentioned, is misinformed and misleading.” He says that the bill misunderstands freedom of speech as an absolute right, ignoring important limitations on freedom of expression. Cotler sees hate speech as outside the scope of freedom of expression because it results in harm to individuals or an identifiable group. He says that this harm-based rationale, which the Supreme Court recognizes, supports restricting hate propaganda to protect equality.[7]

Mark Toews, on behalf of the Canadian Bar Association (CBA), says he supports the retention of section 13. Like Irwin Cotler, he argues that freedom of expression is not absolute and is limited by other Charter rights such as the right to equality under section 15. Toews worries that without section 13, the Criminal Code would be the only tool left to deal with discrimination. The Criminal Code requires a higher burden of proof. Toews sees this as problematic because it could lead to acquittals of hate speech “crimes,” allowing hateful messages to “proliferate and spread unchecked in Canada and beyond its borders.”[8]

Mark Freiman, lawyer and Past President of the Canadian Jewish Congress, takes a similar view. He says the Criminal Code “is not an adequate substitute or an adequate basis on which to protect society from … dangers.”[9] He emphasizes that section 13 protects society from the consequences of hate messages, whereas criminal law focuses on wrongful acts of the messenger.

What about Warman v Lemire?

It is interesting that Storseth alludes to the Warman case in justifying the repeal of section 13, as the ruling in the case is contentious. In Warman, Marc Lemire was the webmaster and owner of websites containing discriminatory messages. He was accused of promoting hate speech over the Internet.[10] The Canadian Human Rights Tribunal ruled that section 13 infringed freedom of expression and could not be saved under section 1 of the Charter.[11]

Ranjan Agarwal, a Toronto lawyer who specializes in constitutional law, argues that the Tribunal’s ruling in Warman is logically inconsistent.[12] Agarwal explains that Warman is complicated by Canada v Taylor, a 1990 Supreme Court of Canada decision, which ruled that an earlier version of section 13 was constitutional.[13] Moreover, the Warman case is still before the courts: the Federal Court of Canada heard the case in December 2011 but had not issued a decision at the time the Commons considered Bill C-304.[14]

What’s next?

Bill C-304 coincides with major cases that are making their way through Canadian appeal courts. Section 13 of the Canadian Human Rights Act is not the only source of tension between freedom of expression, equality, and hate messages. Provincial legislation prohibiting hate messages is at the heart of recent cases such as Boissoin v Lund and Whatcott v Saskatchewan.[15]

The Alberta Court of Appeal has yet to render judgment on Boissoin, though the case was heard in December 2011. The case involves a church minister who wrote an allegedly hateful letter to the Red Deer Advocate expressing his views on homosexuality. Similarly, the Supreme Court of Canada has yet to render judgment in Whatcott, which was heard in October 2011. The case involves an activist who distributed flyers in his campaign against homosexuals and abortion.>[16]

While both of these cases challenge the constitutionality of hate speech provisions in provincial human rights laws, the basic Charter tension between freedom of expression and equality is the same as inWarman and section 13. This delicate issue is winding through courts and legislatures in different jurisdictions, with different facts and different legal details to address. The timing is unpredictable, and the constitutional issues may get more complicated before they get clearer.

[1] RSC 1985, C H-6.

[2] Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom), 1st Sess, 41st Parl, 2012, cl 2 (as passed by the House of Commons 6 June 2012).

[3] Private Member’s Bill C-304, online: Parliament of Canada.

[4] Jason Fekete, “MPs vote to drop some hate-speech sections of Human Rights Act” Ottawa Citizen (7 June 2012).

[5] Richard Moon, “Report to the Canadian Human Rights Commission Concerning Section 13 of the Canadian Human Rights Act and the Regulation of Hate Speech on the Internet” (October 2008) at 31;
Criminal Code, RSC 1985, C C-46 s 318-320; Chris Younker, “The Canadian Human Rights Act and Freedom of Speech: On Parliament’s To-Do List?” Centre for Constitutional Studies (19 June 2009).

[6] Warman v Lemire, 2009 CHRT 26 ; House of Commons Debates, 41st Parl, 1st Sess, No 51 (22 November 2011) at 1830-1840.

[7] House of Commons Debates, 41st Parl, 1st Sess, No 51 (22 November 2011) at 1900-1905.

[8] House of Commons, Standing Committee on Justice and Human Rights, An Act to amend the Canadian Human Rights Act (protecting freedom), Meeting 31 (24 April 2012) at 1900-1905.

[9] Ibid at 1215.

[10] Warman at paras 11-12.

[11] Ibid at para 295.

[12] Ranjan Agarwal, “The Politics of Hate Speech: A Case Comment on Warman v Lemire” (2010) 19 Constitutional Forum 65.

[13] Canada (Human Rights Commission) v Taylor, [1990] 3 SCR 892.

[14] Canadian Civil Liberties Association, News Release, “CCLA Intervenes at Federal Court in Warman v Lemire” (13 December 2011).

[15] Boissoin v Lund, 2009 ABQB 592; Whatcott v Saskatchewan (Human Rights Tribunal), 2010 SKCA 26.

[16] Canadian Civil Liberties Association, News Release, “September 2011 e-bulletin” (2 September 2011).

The Boissoin v. Lund Decision: If Alberta’s Hate-Speech Law is Constitutional, What Does It Actually Prohibit?

On December 3, 2009, the Court of Queen’s Bench of Alberta issued its decision in Boissoin v. Lund.[1] This decision is a judicial review of a 2007 ruling of the Human Rights Panel of Alberta, and of the panel’s 2008 decision on remedies in the case.[2] An earlier article outlined the background of the case, the panel decisions, and the constitutional arguments before the court. This article summarizes the court’s decision on constitutional issues and its impact on the publication of “hate speech” in Alberta.[3] In brief, in 2002 the Red Deer Advocate published a letter to the editor written by Stephen Boissoin, identified as Reverend and Central Alberta Chairman of the Concerned Christian Coalition. The letter – several hundred words, quoted in full in the Queen’s Bench decision – was “aimed precisely at every individual that in any way supports the homosexual machine;” it urged readers to “stand together and take whatever steps are necessary to reverse the wickedness that our lethargy has authorized to spawn.” The letter attracted local attention and elicited a number of replies in the newspaper. A couple of weeks later, when the Red Deer Advocate reported an assault on a local gay teenager, the victim was quoted as saying that anti-gay statements made him feel unsafe and they encouraged people to “go out and stop the gay rights movement.” Dr. Darren Lund read the newspaper story and decided to complain to the Alberta Human Rights Commission.[4] Some years later, a panel of the Commission ruled for Lund and ordered a set of remedies for Boissoin’s breach of Alberta’s prohibition on publishing “any statement … that … is likely to expose a person or class of persons to hatred or contempt because of the … sexual orientation … of that person or class of persons.”[5] Boissoin’s appeal to the Court of Queen’s Bench took issue with the way the panel applied the law to his particular case, and also with the constitutionality of the law itself.

Section 3 of Alberta’s (HRCMA)

Human Rights, Citizenship and Multiculturalism Act The constitutional arguments before the court turned on a section of the HRCMA that dates from 1996. The section says: 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, 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…. “Sexual orientation” was added to the section by the Alberta legislature in 2009, but the section had already been interpreted to include sexual orientation in a 1998 Supreme Court of Canada decision, Vriend v. Alberta.[6]

Jurisdictional Limits on Provincial Regulation of Expression

The Court of Queen’s Bench considered the argument that the wording of section 3 of the HRCMA addressedall discriminatory publications in Alberta, and that a provincial legislature lacks the constitutional authority to legislate so broadly.[7] The court rejected this interpretation based on its understanding of the entire scheme of the HRCMA, not just the words of section 3: In my opinion the broad intent of the Act is to achieve equality for all through the prohibition of specific discriminatory practices or activities in the provision of goods, services, accommodations and facilities (s.4); tenancies (s.5); and, employment practices (s.s. 6, 7, 8 & 9). While the Act seeks to achieve its intent in various ways, the aim of section 3(1) is to discourage, if not eliminate activity which reenforces [sic] prejudice which, in turn, fosters discrimination and discriminatory practices against persons or classes of persons.[8] This interpretation puts section 3 safely within provincial jurisdiction. Applied to alleged hate propaganda in the form of homophobic publications, then, …s. 3(1)(b) is directed at eliminating statements which are hateful or contemptuous of a person or class or persons due to their sexual orientation, and which are also likely to cause others to engage in any of the discriminatory practices listed in the Act.[9] To make its interpretation clearer, the decision describes a prohibition that a province could not enact: unlike discrimination in tenancies, services, employment and so forth, “hateful expressions that could lead to violence … is a matter governed by the criminal law power reserved solely to Parliament.”[10] The Boissoin v. Lund decision reinforces a line of precedent on provincial human rights codes dating back at least to 1986, when the Supreme Court of Canada held: These legislative protections are valid not because they affirm interests such as liberty, or human dignity, but because the activities legislated, that is, for example, housing, employment, and education, are themselves legitimate areas of provincial concern under ss. 92 and 93 [of theConstitution Act, 1867].[11]

Charter Limits on Regulating Publications

Arguments under the Canadian Charter of Rights and Freedoms were not decisive for the Court of Queen’s Bench. A 1990 Supreme Court of Canada decision, upholding a similar provision in federal human rights legislation, determined the Charter issue.[12] The court nonetheless dealt with Boissoin’s view that his letter to the editor brought freedom of the press into play, alongside freedom of expression. It did not sympathize with this argument: …I am not satisfied that the appellant can properly claim some type of super-added right by riding the newspaper’s constitutional coattails simply because of the latter’s involvement in choosing to publish the letter. I also fear that if it were otherwise then some mischievous writer may choose to reconfigure his letter as a newspaper journal solely to claim a greater freedom of expression. That cannot be what the framers of the Charter intended.[13] The court also considered a recent decision of the Canadian Human Rights Tribunal, which found the prohibition of “hate messages” in the Canadian Human Rights Act[14] contrary to the Charter. The tribunal decision concluded that the prohibition does not satisfy the test for “minimal impairment” of freedom of expression.[15] The tribunal’s decision hinged on new punishments (added in 1998) for breaches of the federal Act. Noting the contrast between the punishment provisions of the federal Act and Alberta’s statutory scheme, the Court of Queen’s Bench concluded, “No analogy can be fairly drawn.”[16] The 1990 Supreme Court precedent therefore guided the court in its analysis of Charter issues in the Alberta HRCMA.

“free expression of opinion on any subject”

Parties and interveners in Boissoin v. Lund offered arguments on the proper interpretation of subsection 3(2) of the HRCMA. Boissoin saw the section as an exemption: as long as a person was exercising “free expression of opinion on any subject” the publication could not be caught by the subsection 3(1) prohibition.[17] The court followed precedent from Alberta and other jurisdictions in rejecting this interpretation: [T]his subsection does not operate to provide blanket protection for the publication of an otherwise unlawful message through the simple device of describing that message as a political, religious or personal “opinion.” …Indeed, one can say that every message contains some measure of the author’s opinion which he freely seeks to express.[18] Instead, subsection 3(2) requires a balancing of “the two competing objectives of freedom of expression and the eradication of discrimination” in addressing complaints under subsection 3(1).[19] The Court of Queen’s Bench went on to reject the Alberta Human Rights Panel’s finding that Boissoin’s letter was “hateful and contemptuous of homosexuals.”[20]

What Can’t an Albertan Publish?

Darren Lund called the court’s decision “a step backward for our province…. In my view, the judge’s ruling sets such strict standards for hate speech that this section is rendered all but unenforceable.” [21] He added, “If our human rights laws say that writing like this is OK, that is very detrimental to creating safe communities…. It makes you wonder what are the reasonable limits on hate speech in Alberta?”[22] Stephen Boissoin called the outcome “an incredible victory for freedom of speech and for all Albertans who want to share their opinions on the social and moral issues of our day.”[23] Still, the Canadian Constitution Foundation, which lost its argument that the Alberta law exceeded provincial jurisdiction, expressed its continuing concern for outspoken Albertans: In spite of today’s court ruling, Albertans need to continue to exercise extreme caution when speaking about public policy issues, lest they offend someone who then files a human rights complaint. No citizen is safe from being subjected to a taxpayer-funded prosecution for having spoken or written something that a fellow citizen finds offensive.[24] The HRCMA itself, along with Alberta’s system for accepting, investigating and adjudicating human rights complaints, remains intact in the wake of Boissoin v. Lund. What the decision seems to have changed are the thresholds the Commission must apply to complaints about “hate speech” in the form of written publications. The Court of Queen’s Bench concluded: [T]he allegedly hateful or contemptuous speech must be directly linked to areas of prohibited discriminatory practices and … s. 3(1)(b) applies only to hateful expression that itself signals an intention to engage in discriminatory behaviour, or seeks to persuade another person to do so…. [Moreover], there must be some likelihood that the message might bring about a prohibited discriminatory practice in order to engage s. 3(1)(b).[25] The writer of the discriminatory publication must intend to contribute to discriminatory practices.[26] The court also notes the importance of an increased likelihood of discriminatory actions: “Simply fostering discriminatory beliefs in another does not automatically make it likely that the individual might then act out those beliefs through prohibited discriminatory activity.”[27] Therefore: “Hateful or contemptuous speech that may prompt or even add to existing prejudice against a class of persons is not prohibited per se by theAct.”[28] In short, “Care must be taken not to simply move from a finding that the message is hateful or contemptuous to then presume that discriminatory practices are likely to ensue.”[29] It seems, then, that a written expression of strong hostility to people covered by the “prohibited grounds” in section 3 of the HRCMA, even when the expression is accompanied by a general encouragement to take action against them, do not run afoul of Alberta’s human rights protections. To be caught by the HRCMA, a “hate speech” publication would have to be quite specific in inciting particular forms of discrimination – in housing, services, employment and so forth – and would have to be persuasive enough that some readers would likely engage in discriminatory practices because of it.

[1] 2009 ACQB 592 . [2] Darren Lund v. Stephen Boissoin and the Concerned Christian Coalition Inc. (November 30, 2007, Alta. H.R.P.; Lori G. Andreachuk, Q.C., Panel Chair); Decision on Remedy, Darren Lund v. Stephen Boissoin and the Concerned Christian Coalition Inc. (May 30, 2008, Alta. H.R.P.; Lori G. Andreachuk, Q.C., Panel Chair). [3] Boissoin at para. 13. [4] Ibid. at paras. 14-17. [5] Alberta Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14 at section 3. [6] [1998] 1 S.C.R. 493. [7] Boissoin at para. 28. See also the section on “Division-of-Powers Issues in the Appeal” in Ken Dickerson, “The Issues in Boissoin v. Lund: Expression and Discrimination under Alberta Human Rights Law” Centre for Constitutional Studies (17 September 2009). [8] Boissoin at para. 31. [9] Ibid. at para. 33 (emphasis in original). [10] Ibid. at para. 36. [11] Scowby v.Glendinning [1986] 2 S.C.R. 226. [12] Boissoin at paras. 119 and 122-123, citing Canada (Human Rights Commission) v. Taylor [1990] 3 S.C.R. 892. [13] Ibid. at para. 121. [14] R.S.C. 1985, c. H-6 at section 13. [15] Warman v. Lemire, 2009 CHRT 26 at para. 290. [16] Boissoin at paras. 124-126. [17] See the section on “Charter Issues in the Appeal” in Dickerson, supra note 7. [18] Boissoin at para. 85. [19] Ibid. at para. 86, quoting Kane v. Alberta Report 2001 ABQB 570 at para. 73. [20] Ibid. at para. 89. [21] “Court quashes human rights anti-gay ruling” CBC.ca (4 December 2009). [22] Deborah Tetley, “Judge overturns hate ruling in Red Deer case, allows anti-gay remarks” Calgary Herald (4 December 2009). [23] Ibid. [24] News release, “Partial victory for free speech in Boissoin court judgment” Canadian Constitution Foundation (3 December 2009). [25] Boissoin at para. 43. [26] Ibid. at para. 44. [27] Ibid. at para. 51. [28] Ibid. at para. 55. [29] Ibid. at para. 56.

The Issues in Boissoin v. Lund: Expression and Discrimination under Alberta Human Rights Law

On September 16-17, 2009 the Alberta Court of Queen’s Bench heard arguments about the constitutionality of a controversial section in Alberta’s human rights code. This article fills in the background to the dispute and outlines the constitutional arguments, based on written submissions to the court. Since 1996, the Human Rights, Citizenship and Multiculturalism Act[2] (HRCMA) has prohibited Albertans from publishing any statement that “is likely to expose a person or a class of persons to hatred or contempt” based on a list of personal characteristics.[3] These characteristics are referred to as “protected grounds.” A decision of the Supreme Court of Canada in 1998 added sexual orientation to the list of protected grounds.[4] The Alberta legislature formalized this change to the Act in Bill 44 – passed in 2009 – but “sexual orientation” has been an enforceable prohibited ground since 1998. Accompanying the section on discriminatory statements is a section which says that the prohibition shall not “be deemed to interfere with the free expression of opinion on any subject.”[5] A 2007 decision of the Human Rights Panel of Alberta applied the HRCMA to a letter to the editor published in the Red Deer Advocate in 2002.[6] The author of the letter, Stephen Boissoin, was then Central Alberta Chairman of an organization called The Concerned Christian Coalition Inc. (CCC); his letter mentioned his position in the Coalition and to his title of Reverend.[7] The Panel determined that statements in the letter were “likely to expose homosexuals to hatred and contempt due to their sexual preference” and found that Boissoin and the Coalition had both contravened the Act by “causing [the letter] to be published.”[8] The constitutionality of this part of the HRCMA has been called into question. Alberta’s Human Rights Panels do not have jurisdiction to decide on Charter issues, but they may decide matters arising from the federal-provincial division of powers.[9] The Panel analyzed provincial jurisdiction and determined that it was empowered to decide the case. Mr. Boisson appealed the Panel’s decision to the Court of Queen’s Bench. Unlike the Panel, the court may consider the full range of constitutional issues the dispute raises.

Section 3 of the Alberta Human Rights, Citizenship and Multiculturalism Act

The current wording of the publications section of the Act (incorporating the addition of “sexual orientation”) is as follows:

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, 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….

The Human Rights Panel Decision The issues came before an Alberta Human Rights Panel after a formal complaint from Dr. Darren Lund in 2002, shortly after the letter to the editor was published. The Chief Commissioner of the Alberta Human Rights and Citizenship Commission allowed Lund’s complaint to proceed to a panel hearing in 2005. A related complaint against the Red Deer Advocate was settled, in part by a formal change in the paper’s policy for printing discriminatory statements.[10] Dr. Lund was not named in the letter, but he had lived for some years in Red Deer. He launched the complaint out of concern for how the letter could “cause young gay, lesbian, trans-gender, bisexual young people in central Alberta to be especially vulnerable.”[11] The Panel’s 80-page decision first considered whether the letter to the Red Deer Advocate had breached section 3(1). It concluded that Boissoin “caused” the letter to be published by submitting it to the newspaper.[12] It then found that “any person of reasonable intelligence informed about the context” of the letter “would understand the message is expressing hatred and/or contempt” under section 3(1)(b).[13] To assess whether the letter exposed a “class of persons” to hatred or contempt, the Panel applied the factors set out by the Alberta Court of Queen’s Bench in a 2001 case:

the content of the communication,
the tone of the communication,
the image conveyed, including whether the issues of quotations and reference sources, gives the message more credibility,
the vulnerability of the target group,
the degree to which the expression reinforces existing stereotypes,
the circumstances surrounding the issues, including whether the messages appeal to well publicized issues,
the medium used to convey the message,
the circulation of the publication and its credibility, and
the context of the publication – whether it is part of a debate or whether it is presented as news or as a purportedly authoritative analysis.[14]

Based on these factors, the Panel found that “the publication … was, on the balance of probabilities, likely to expose homosexuals to hatred and/or contempt.”[15] The Panel concluded that both Boissoin and The Concerned Christian Coalition Inc. were in breach of section 3(1).[16] The second legal issue the Panel considered was the effect of section 3(2). It rejected Boissoin’s argument that his letter was “opinion” and therefore not subject to section 3(1).[17] Likewise, it did not agree with the argument that section 3(2) provides “further protection for political speech.” Instead, the Panel concluded that section 3(2) “bolsters the necessity to balance competing rights using Charter values.”[18] Balancing freedom of expression and freedom from discrimination, the Panel found that “the eradication of hate speech … is paramount to the freedom Mr. Boissoin and the CCC should have to speak their views.”[19] The third legal issue before the Panel was its own jurisdiction to hear the complaint. Boisson argued that freedom of expression is not under provincial authority, and that hate is a criminal matter under federal jurisdiction. The Canadian Civil Liberties Association, intervening in the case, supported Boissoin’s argument that the Panel only has jurisdiction if there is “a direct link between the discriminatory expression and a prohibit[ed] discriminatory act.”[20] The Panel found the required “crucial link to matters under provincial jurisdiction” in the letter’s connection (“albeit perhaps somewhat indirectly”) to the provincial education system. It also found a “circumstantial connection” between the letter and a subsequent beating of a gay teenager in Red Deer. The subject of the complaint was also “a local matter” under provincial jurisdiction. The Panel added that if it did not accept jurisdiction for the complaint, “inciting hatred would be acceptable up to the point that a crime occurs as a result of it.”[21] A subsequent Panel decision issued orders on Boissoin and the Coalition. The orders were not intended to be punitive or to compensate any “direct victim” of their contravention of the Act.[22] The panel ordered:

payment of damages to Lund and reimbursement of expenses to a witness,
a written apology to Lund for the letter to the editor, and submission of the apology letter to the Red Deer Advocate for reprinting in the paper,
a cease-publishing order, “in newspapers, by email, on the radio, in public speeches, or on the internet, in future, of disparaging remarks about gays and homosexuals,” or about Lund or any witnesses in the complaint, and
removal of “all disparaging remarks versus homosexuals” from existing websites and publications of Boissoin and the Coalition.[23]

Charter Issues in the Appeal

Mr. Boissoin’s brief to the Court of Queen’s Bench argues that sections 2(a) and 2(b) of the Charter – respectively, “freedom of conscience and religion” and “freedom of thought, belief, opinion and expression” – render section 3(1) of the HRCMA unconstitutional.[24] According to Boissoin’s submissions, the prohibition is “unconstitutional to the extent it is applied to expression other than advertisements related to activities” that are prohibited elsewhere in the HRCMA.[25] He argues that comparable prohibitions that have been upheld by the courts were less far-reaching than the Alberta statute.[26] He also cites Canadian experts in arguing that Alberta’s relatively broad prohibition is not “consistent with [the] current commitment by Canadian society to freedom of expression.”[27] Boisson argues that the Panel took the wrong approach to its consideration of “Charter values” in interpreting the HRCMA: it “was wrong to state that the ‘eradication of discrimination’ is a ‘freedom’ to be balanced with another ‘freedom,’ that of expression.” Combating discrimination is merely a “legislative objective,” not a right to be balanced against another right.[28] The Panel’s error, in Boissoin’s view, extended to using section 3(2) of the HRCMA to balance the prohibition in section 3(1); he takes the position that the reference to “free expression of opinion” in the Act provides an exemption, not just a countervailing consideration.[29] The brief of the Canadian Civil Liberties Association, intervening in the appeal, supports some of Boissoin’sCharter arguments (while rejecting the views in his letter). In principle, the CCLA takes the view that “generally, the proper response to speech that is offensive, distasteful, or upsetting is counter-speech.”[30] The CCLA argues that section 3(1)(b) – “is likely to expose a person or a class of persons to hatred or contempt” – should be struck down by the court as infringing the Charter freedoms of expression and religion. Alternatively, they propose that the section should be “read down” so that it only applies to “materials that lead to specific acts of discrimination in the provision of goods and services.”[31] The CCLA emphasizes that the expression at issue “took the form of a letter to the editor,” it “concerned a political and moral issue,” and it “stemmed from religious beliefs.”[32] Freedom of the press has “a special role in a democratic society” that calls for a minimum of limitation by courts and tribunals.[33] “Polemical expression” should be tolerated in the interest of democratic debate: “this right cannot be limited to expressions which use polite terms in non-confrontational settings.”[34] As for religious expression:

There are numerous situations in which religious publications, sermons, expressions and protests can and have been hurtful to certain groups…. Any prohibition on this type of material represents a core intrusion on the freedoms protected by s.2 [of the Charter].[35]

Like Boissoin, the CCLA observes that Canadian courts have upheld laws limiting expression under the “reasonable limits” section of the Charter, but these laws were narrower in scope than section 3 of Alberta’s HRCMA.[36] Part of the CCLA’s argument on reasonable limits is its submission that:

It is far from certain that suppressing expression, rather than allowing for an exchange of ideas, beliefs and opinions, is the most effective way to promote tolerance, understanding and equality.[37]

The brief of the Attorney General of Alberta, also intervening on the constitutional issues, takes the opposing position on the application of the Charter to the HRCMA. Arguing that section 3 of the Act should be upheld, Alberta says that political and religious expression should both be subject to reasonable limitation.[38]Alberta’s submissions reflect the province’s interpretation of Supreme Court of Canada precedents: freedom-of-expression claims are to be analyzed

…by their connection to a ‘core’ of democratic values including the search for political, artistic and scientific truth, the protection of individual autonomy and self-development, and the promotion of public participation in the democratic process.[39]

Alberta rejects the position that section 3(2) of the HRCMA is a “saving provision” that would exempt some statements from the application of section 3(1) if they are “discriminatory or hateful” but expressed in terms of “opinion.”[40] On the reasonable limits test, Alberta’s arguments emphasize judicial deference to legislative choices:

It is submitted that anti-discrimination legislation involves the protection of vulnerable groups, complex social issues, and the reconciliation of competing interests. In these respects, this honourable Court should give some degree of deference to the legislative decision to enact s. 3 HRCMA.[41]

Dr. Lund’s brief offers a thorough defence of the constitutionality of the Act.[42] Lund agrees that the expression in the Boissoin letter “comes within section 2(b) of the Charter.”[43] However, Lund submits that “every Court and tribunal that has considered a Charter challenge to provisions regulating hate propaganda … has determined the provisions to be justified and constitutional.”[44] He rebuts the argument that the Alberta HRCMA approach should be an exception to the pattern. Dr. Lund agrees with the Alberta government that a “degree of deference” should be shown by the court to the legislature’s choice of how to regulate hate speech.[45] He does not share the CCLA’s faith in “counter-speech” as an adequate response to offensive statements: “The argument that we should have faith in human reason is belied by history.”[46] Lund takes the position that the HRCMA reflects the Charter right to equality, so a balancing of equality against the freedoms of expression and religion must be part of theCharter analysis.[47] This position is reflected in Lund’s argument about proportional effects under the reasonable-limits analysis:

Upholding s. 3(1)(b) of the HRCMA gives effect to equality rights protected under the Charter, with only limited effect on freedom of expression – since critical speech, even offensive speech is not prohibited. But removing the protection of s. 3(1)(b) of the HRCMA obliterates equality rights in favour of expression.[48]

Division-of-Powers Issues in the Appeal

Relying on pre-Charter precedents, Boissoin argues that only the federal Parliament may legislate to limit free expression “relating to ‘public affairs and the equal rights in that respect of all citizens’.”[49] Limits on such expression “are considered to be in the nature of criminal law, an exclusively federal responsibility.”[50]According to this view, then, “When provincial legislation intrudes deeply into the fundamental freedoms of speech, religion, association or assembly, the provincial legislature is said to be creating criminal legislation.”[51] Mr. Boissoin emphasizes the “political nature” of his letter to the editor to place it within the scope of public affairs; Lund’s complaint thus harnessed the HRCMA to a political “strategy … to silence opposition.”[52] To use the HRCMA in this way cannot be constitutional, according to Boissoin’s argument. The brief of the Canadian Constitution Foundation, the third intervenor in the appeal, elaborates on the argument about federal jurisdiction over criminal law. The CCF submits that section 3(1)(b) of the HRCMA is “in pith and substance … no different from section 319” of the Criminal Code, which outlaws the public incitement and willful promotion of hatred.[53] Moreover, the provincial prohibition lacks the defences available under the criminal law – “truth, expression of religious belief, public interest discussion, or quoting with a view to initiating the removal of others’ offensive statements” – and therefore it represents a provincial attempt to amend a federal statute.[54] The CCF canvasses provincial heads of power under the constitution that could provide a constitutional basis for section 3(1) of the HRCMA, but rejects them:

There is no head of power contained in section 92 [of the Constitution Act, 1867] that explicitly or obviously grants a provincial legislature the power to regulate or restrict the expression or publication of ideas, thoughts beliefs or opinions.[55]

While it is constitutional for a province to deal with discrimination, the CCF argues that section 3(1) does not have this legitimate purpose: “One can violate paragraph 3(1)(b) … without any injured party suffering a loss in the areas of services, housing or employment.”[56] The CCLA echoes the CCF’s insistence that there must be a closer connection between the prohibited expression and “specific discriminatory acts that the province has the power to prohibit” if the prohibition is to be valid as an exercise of provincial legislative jurisdiction:

The division of powers, as set out in sections 91 and 92 of the Constitution Act, 1867, does not allow a province to restrict expression that may be considered offensive simply because it has the capacity to offend. The provincial legislature may only legitimately curtail such expression directly linked to specific discriminatory acts that the province has the power to prohibit.[57]

The CCLA does not accept that the letter’s implications for policy in the provincial education system have any bearing on the constitutionality of the HRCMA: “simply because a publication addresses issues within the provincial school system,” it does not come within provincial jurisdiction to regulate it.[58] The Attorney General of Alberta affirms provincial jurisdiction under the Constitution Act, 1867 to “limit discriminatory expression that touches upon subject matters falling within provincial jurisdiction,” such as property and civil rights (section 92(13)), or matters of a local or private nature (section 92(16)); “Whether such expression is characterized as being ‘religious’ or ‘political’ does not affect that ability.”[59] Dr. Lund’s brief sets out the most detailed arguments on the division of powers.[60] He submits that the Panel correctly found that it had jurisdiction to hear Lund’s complaint and decide the case; specifically, “the matter was of a local or private nature, it did not involve criminal law, and the nature of the speech at issue was within provincial jurisdiction.”[61] Lund refers to recent Supreme Court decisions that reject the idea of a strict segregation of federal and provincial legislative authority.[62] Lund also argues that the content of Boissoin’s letter illustrates how section 3(1) of the HRCMA links communication with discrimination: the letter

…advocates against employment of homosexuals in schools …, against inclusion of sexual orientation in the curriculum …, and against the equality and dignity of homosexuals, which will have repercussions in each of the areas of prohibited discrimination.[63]

Criminal law is not the only way – and may not be the best way – to regulate publications that may promote hatred and contempt, according to Lund. He refers to Supreme Court statements that “circumstances involving publications likely to expose to hatred or contempt are better dealt with through remedial human rights provisions.”[64] Lund agrees with the Attorney General that recent Canadian jurisprudence has rejected the idea that expression is under exclusive federal jurisdiction.[65] He notes that Alberta regulates “political speech” under its Election Act.[66] The prohibition at issue in Boissoin v. Lund was enacted in 1996. The Alberta legislature opted not to alter it in the most recent amendments to the HRCMA, passed in 2009.[67] Canadian human rights laws pursue the same general purposes in all jurisdictions, but there is considerable variation in their details. Much of the legal argument before the Alberta Court of Queen’s Bench deals with cases from other jurisdictions, where courts had to consider differently-worded prohibitions, often at a different stage in the evolution of the case law. The court heard final oral arguments on September 16 and 17, 2009. Its decision could be issued at any time.

Further Reading

Linda McKay-Panos, “Offensive Publication Case Highlights the Tension Between Human Rights and Civil Liberties” Alberta Civil Liberties Research Centre (11 December 2007). Chris Younker, “The Canadian Human Rights Act & Freedom of Speech: On Parliament’s To-Do List?”Centre for Constitutional Studies (19 June 2009).

[1] Ken Dickerson is Program Manager at the Centre for Constitutional Studies. The author’s views do not necessarily reflect those of the Management Board and staff of the Centre for Constitutional Studies. Research assistance was provided by Chris Younker, a student in the Faculty of Law, University of Alberta. [2] R.S.A. 2000, c. H-14. [3] Ibid. at section 3(1). [4] Vriend v. Alberta, [1998] 1 S.C.R. 697. [5] Supra note 1 at section 3(2). [6] Darren Lund v. Stephen Boissoin and the Concerned Christian Coalition Inc. (November 30, 2007, Alta. H.R.P.; Lori G. Andreachuk, Q.C., Panel Chair). [7] Ibid. at para. 53. [8] Ibid. at paras. 331 and 360-3. [9] Designation of Constitutional Decision Makers Regulation, Alta. Reg. 69/2006. [10] Supra note 6 at paras. 1-6. [11] Ibid. at paras. 15-17. [12] Ibid. at para. 311. [13] Ibid. at para. 320. [14] Linda McKay-Panos, “Offensive Publication Case Highlights the Tension Between Human Rights and Civil LibertiesAlberta Civil Liberties Research Centre (11 December 2007). See also Panel at paras. 321-324.” [15] Supra note 6 at para. 325. [16] Ibid. at para. 333. [17] Ibid. at para. 341. [18] Ibid. at para. 345. [19] Ibid. at para. 346. [20] Ibid. at para. 347-348. [21] Ibid. at paras. 349-352. [22] Decision on Remedy, Darren Lund v. Stephen Boissoin and the Concerned Christian Coalition Inc. (May 30, 2008, Alta. H.R.P.; Lori G. Andreachuk, Q.C., Panel Chair) at paras. 9-10. [23] Ibid. at para. 14. [24] Brief of the Appellant Stephen Boissoin, Boissoin v. Lund, Court of Queen’s Bench of Alberta, Action no. 0801-07613 (“Boissoin Brief”) at paras. 24-41.. [25] Ibid. at para. 27. [26] Ibid. at paras. 25-27. [27] Ibid. at para. 27; see also paras. 29-31. [28] Ibid. at paras. 52-53. [29] Ibid. at paras. 57-60. [30] Brief of Argument of the Intervener, the Canadian Civil Liberties Association, Boissoin v. Lund, Court of Queen’s Bench of Alberta, Action no. 0801-07613 (“CCLA Brief”) at paras. 4-5. [31] Ibid. at para. 7. [32] Ibid. at para. 10. [33] Ibid. at paras. 11-14. [34] Ibid. at paras. 16-17. [35] Ibid. at para. 24. [36] Ibid. at paras. 25-33. [37] Ibid. at para. 29. [38] Brief of the Intervener, the Attorney General of Alberta, Boissoin v. Lund, Court of Queen’s Bench of Alberta, Action no. 0801-07613 (“AG Brief”) at paras. 15-20. [39] Ibid. at para. 13. [40] Ibid. at para. 31. [41] Ibid. at para. 53. [42] Brief of the Respondent Darren Lund, Boissoin v. Lund, Court of Queen’s Bench of Alberta, Action no. 0801-07613 (“Lund Brief”) at paras. 72-142. [43] Ibid. at para. 79. [44] Ibid. at para. 81. [45] Ibid. at para. 83. [46] Ibid. at para. 105. [47] Ibid. at para. 111. [48] Ibid. at para. 141. [49] Boissoin Briefat para. 61, citing Reference re. Alberta Legislation, [1938] S.C.R. 100. [50] Ibid. [51] Ibid. at para. 65. [52] Ibid. at paras. 71-72. [53] Ibid. at para. 36. [54] Ibid. at para. 43-44. [55] Ibid. at para. 7. [56] Ibid. at para. 12. [57] CCLA Brief at para. 39. [58] Ibid. at para. 46. [59] Ibid. at para. 10. [60] Lund Briefat paras. 145-196. [61] Ibid. at para. 145. [62] Ibid. at paras. 146-149. [63] Ibid. at para. 161. [64] Ibid. at para. 173. [65] Ibid. at paras. 182-190. [66] Ibid. at para. 191. [67] Anna-May Choles, “Bill 44 Amended and Passed by Alberta Legislature in Marathon Session; Few MLAs Show Up for Final Vote on Human Rights Changes” Centre for Constitutional Studies (3 June 2009).

Refusal to Perform Same-Sex Marriage Costs Sask. Marriage Commissioner $2500

A Saskatchewan marriage commissioner who refused to perform a same-sex marriage ceremony has lost his appeal of a Human Rights Tribunal decision which ordered him to pay $2500 to one of the grooms. Saskatchewan’s Court of Queen’s Bench ruled that, in his capacity as a public official, Orville Nichol’s religious beliefs do not matter.[1]

Mr. Nichols, a member of First Baptist Church, has been a marriage commissioner since his retirement from the Regina Police Service in 1983.[2] In April 2005, M.J. contacted Nichols to ask that he perform a marriage ceremony the next month. Nichols replied that he was available, but upon learning M.J. intended to marry another man, Nichols said he could not perform the ceremony because of his religious beliefs.[3]

M.J. and his partner were married on May 5, 2005 by a different Saskatchewan marriage commissioner.[4]

The Saskatchewan Human Rights Tribunal ruled Nichol’s refusal to perform the same-sex marriage on religious grounds violated section 12 of The Saskatchewan Human Rights Code, which prohibits denying public services on grounds such as sexual orientation.[5]

Mr. Nichols appealed this decision before the Court of Queen’s Bench, arguing that his “sincere and genuine” religious beliefs should be accommodated; he was entitled to decline performance of a same-sex marriage on religious grounds; and that his right to freedom of religion, protected by the Saskatchewan Human Rights Code and the Canadian Charter of Rights and Freedoms, was violated by compelling him to perform a same-sex marriage.[6]

Mr. Nichols contended that “service seekers cannot demand service from a particular service provider when the provision of that service is contrary to the core of his religious beliefs and those services are readily available from another service provider.”[7] The court ruled that Nichol’s religious beliefs could not be accommodated since he was a government actor providing a public service, as opposed to a private citizen whose beliefs could be accommodated.[8]

Relying on the Supreme Court of Canada’s ruling in the Same-Sex Marriage Reference, Nichols argued that his Charter right to freedom of religion protected him from “compulsory celebration of same-sex marriages.”[9] The Supreme Court stated:

[T]he guarantee of religious freedom in s. 2(a) of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same‑sex marriages that are contrary to their religious beliefs.[10]

The Court of Queen’s Bench found that the Supreme Court’s statement applied only to religious officials, and not government officials performing a civil marriage.[11]

Mr. Nichols further argued that by applying the Oakes test under section 1 of the Charter, the infringement of his right to freedom of religion could not be justified as reasonable in a free and democratic society.[12] The court concluded, however, that when Nichols acted as a marriage commissioner “his freedom of religion ought to be limited to exclude discrimination on the basis of sexual orientation.”[13]

Mr. Nichols had previously lost a separate Human Rights Tribunal decision in which he alleged his religious freedoms would be violated if he was forced to perform same-sex marriages.[14]

The Court of Queen’s Bench decision maintains the status quo where marriage commissioners may not opt-out of performing same-sex marriages because of their religious beliefs. On July 3, 2009, the Saskatchewan government referred draft legislation to the provincial Court of Appeal which would allow marriage commissioners to opt-out on religious grounds.[15] The Court of Appeal has yet to give its advisory opinion as to whether the legislation violates the Charter.

Further Reading

Ronalda Murphy, “Same-Sex Marriage and the Same Old Constitution” Constitutional Forum.

Dan Shouldice, “Saskatchewan Refers Same-Sex Marriage Question to Courts” Centre for Constitutional Studies (3 July 2009).

[1] Nichols v. M.J., 2009 SKQB 299 at para. 76.

[2] Ibid. at paras. 8-10.

[3] Ibid. at para. 12.

[4] Ibid. at para. 13.

[5] S.S. 1979, c. S-24.1, s. 12; Supra note 1 at para. 2.

[6] Supra note 1 at para. 7.

[7] Ibid. at para. 34.

[8] Ibid. at paras. 25-26.

[9] Ibid. at para. 28.

[10] Reference re Same-Sex Marriage, 2004 SCC 79 at para. 60.

[11] Supra note 1 at para. 29.

[12] Ibid. at para. 61.

[13] Ibid. at para. 73.

[14] “Commissioner who refused to marry same-sex couple loses appeal” cbc.ca (23 July 2009).

[15] Dan Shouldice, “Saskatchewan Refers Same-Sex Marriage Question to Courts” Centre for Constitutional Studies (3 July 2009).

The Canadian Human Rights Act & Freedom of Speech: On Parliament’s To-Do List?

The Canadian Human Rights Commission (CHRC) recently commented on proposals to amend the Canadian Human Rights Act[1] (CHRA) from law professor Richard Moon.[2] In his report, Moon called for the elimination of section 13 of the CHRA, which regulates the use of hate speech on the Internet.[3] While section 319 of the Criminal Code already criminalizes hate speech,[4] the CHRA provision allows for an alternative route to resolution, less onerous than going through the courts.

Critics have objected to the wider definition of hate speech under the CHRA, and are concerned that the Canadian Human Rights Tribunal may be poorly suited to tackle such a complicated and nuanced issue.[5] Additionally, there is the concern that imposing regulations under section 13 may infringe on the right to free speech under section 2(b) of the Canadian Charter of Rights and Freedoms.[6]

The Moon Recommendations and the CHRA’s Response

Professor Moon made three main recommendations to the CHRC.

The first recommendation was that section 13 of the CHRA be repealed entirely, leaving the prohibition of hate speech solely in the domain of the Criminal Code and the court system.[7]
The second suggestion was that if section 13 was to be retained, it should be modified to bring it more in line with the corresponding provisions of the Criminal Code.[8] This modification would involve: (1) narrowing the scope of prohibited expression to include only the “most extreme instances of discriminatory expression,” (2) requiring an intention to incite hatred provision, as mandated under criminal law, and (3) eliminating the process by which individuals instigate complaints – instead leaving this task to non-governmental organizations and the Commission itself.[9]
Moon’s third recommendation was that Internet service providers self-police websites they host, shutting down sites that promote hatred.[10]

The CHRC then submitted its own special report to Parliament in June, 2009, entitled Freedom of Expression and Freedom from Hate in the Internet Age.[11] The CHRC rejected Moon’s proposal to remove regulation of hate speech on the Internet from the Commission’s purview.[12] The Commission compromised on Moon’s second suggestion, agreeing with his recommendation to adjust the definition of hate speech under theCanadian Human Rights Act to bring it in line with the Supreme Court of Canada’s interpretation of theCriminal Code. However, the CHRC rejected the idea of requiring proof of intent to incite hatred, along with the discriminatory words themselves, as part of the definition for hate speech.[13]

The Maclean’s Controversy and Continuing Issues

Controversy arose in 2007 over the Canadian Human Rights Tribunal (the body responsible for conducting full hearings in alleged human rights cases) and its regulation of free speech. The Canadian Islamic Congress made a complaint against Rogers Digital Media Publishing for a feature in Maclean’s magazine that reproduced an excerpt from a politically charged book America Alone: The End of the World as We Know It. The excerpt discussed the implications of the spread of Islam for the western world.[14]

Although the complaint was ultimately dismissed as meritless,[15] many Canadians, including the Canadian Civil Liberties Association and “almost every newspaper editorial board in Canada,” were concerned that the broader definition of hate speech and wider scope for filing claims under section 13 of the CHRA could be used by special interest groups to stifle legitimate political debate.[16]

The Maclean’s case highlights some shortcomings of the Commission-Tribunal process. As the CHRC’s report acknowledges, it takes an average of nine months for the Commission to address a complaint – that is, to decide whether to pass the matter on to the Tribunal for a full hearing.[17] By contrast, in criminal prosecutions the Crown attorney has to get the permission of the district attorney before a matter can proceed to court.[18] The CHRC recognizes that it needs to improve its ability to weed out meritless cases early on.

Another area of weakness in the various human rights commissions is that separate commissions end up dealing with the same complaint. For example, the Canadian Islamic Congress filed its complaint against Rogers with the federal, B.C. and Ontario commissions.[19] Although the complaints were dismissed and the article was assessed as being designed to provoke, but not to promote hatred, Rogers was still saddled with the cost of dealing with three separate commission investigations.[20] It is striking that the complaint was handled differently by each of the three commissions: whereas Ontario decided not to consider the complaint for lack of jurisdiction and the federal commission considered the complaint before dismissing it, the B.C. commission sent it to the B.C. Human Rights Tribunal for a full hearing where it was ultimately dismissed.[21]

What Happens Next?

Regardless of the form of prohibition – through a human rights act or under the Criminal Code – critics such as Professor Moon and Ezra Levant are concerned with the potential “chilling” effect on free speech.[22]

Section 1 of the Charter recognizes that rights do not exist in a vacuum, and that often rights are interdependent and sometimes need to be limited, though only to the extent that they can be justified in a free and democratic society.

The high-profile Maclean’s controversy has revived public debate over the balance between free expression and regulating hate propaganda. The Canadian Human Rights Commission solicited Professor Moon’s proposals and prepared a detailed response. The Chief Commissioner of the CHRC, Jennifer Lynch, is calling for a “balanced” debate and “informed discussion.”[23] The time seems ripe for Parliament to debate reforms to the Canadian Human Rights Act.

Further Reading:

Daina Young, “Provision Barring Human Rights Complaints is Constitutional,” Centre for Constitutional Studies (20 June 2007).

Alexandra Bailey, “Federal Human Rights Legislation Now Applies to Reserves,” Centre for Constitutional Studies (27 May 2008).

[1] Canadian Human Rights Act, R.S.C. 1985, c. H-6.

[2] Brian Laghi, “Rights Commission Rejects Calls to Stop Investigating Online Hate,” The Globe and Mail(10 June 2009).

[3] Richard Moon, Report to the Human Rights Commission Concerning Section 13 of the Canadian Human Rights Acts and the Regulation of Hate Speech on the Internet Canadian Human Rights Commission(October 2008).

[4] Criminal Code, R.S.C. 1985, c. C-46 s. 319.

[5] Supra note 2.

[6] Ibid.

[7] Supra note 3 at 42.

[8] Ibid. at 33.

[9] Ibid. at34-35.

[10] Ibid. at 41.

[11] Special Report to Parliament: Freedom of Expression and Freedom From Hate in the Internet Age, Canadian Human Rights Commission (June 2009) at 49.

[12] Ibid. at 2-3.

[13] Ibid. at 33-34.

[14] Kate Lunau, “Canadian Islamic Congress launches human rights complaint against Maclean’s,”Maclean’s (30 November 2007).

[15] Canadian Islamic Congress (CIC) v. Rogers Communications (20071008) Canadian Human Rights Commission (25 June 2008).

[16] Joseph Brean, “Canadians ‘misinformed’ on hate speech,” National Post (22 June 2009).

[17] Supra note 11 at 36.

[18] Ibid. at 39.

[19] Ibid. at 31.

[20] Ibid.

[21] Ibid; Elmasry and Habib v. Roger’s Publishing and MacQueen (No. 4), 2008 BCHRT 378.

[22] Ezra Levant, “Hate-speech (IV)” National Post (letter to the editor, 26 June 2009); supra note 3 at 38.

[23] Jennifer Lynch, “The Federal Human Rights System: Modern Approaches, Modern Challenges” (speech, 15 June 2009).

Human Rights in Question as Alberta Delists Gender Reassignment Surgery

The Alberta government has removed gender reassignment surgery from the list of medical procedures covered by the Alberta Health Care Insurance Plan. On April 15, 2009, members of the transgender community responded by rallying outside the legislature and filing a complaint with the Alberta Human Rights and Citizenship Commission.[1] Their campaign against the delisting may eventually lead to a constitutional challenge.

The concerned citizens were in attendance as NDP MLA Rachel Notley addressed the legislature. Expressing the concerns of the transgender community, Notley suggested that gender reassignment surgery is a matter of life and death for many who identify as pre-operative transsexual. She said that by denying access to transgender medical treatment, the Alberta government “could be complicit in raising [the] risk of depression and suicide.”[2]

The cut is estimated to save Alberta $700,000 on its annual Health and Wellness budget of $12.9 billion.[3] Notley said, “delisting the surgery trims a tiny fraction from the health budget but slashes at the very foundation of human rights.”[4] She later remarked that the savings would be insignificant compared to the cost of legal challenges that would likely result.[5]

While there is no prior Canadian constitutional challenge against restrictions on transgender funding, human rights legislation was invoked in a successful suit against the Government of Ontario. In 1998, Ontario removed sexual reassignment surgery from its list of covered medical procedures. In 2008, The Ontario Human Rights Commission ruled, on the basis of the province’s Human Rights Code,[6] that the funding cut was discriminatory.[7]

Alberta’s human rights legislation has a provision similar to Ontario’s.[8] Nonetheless, the Ontario decision is not binding on the Alberta Human Rights Tribunal.

The section 7 Charter right to security of the person is a potential point of constitution litigation when government action (or sometimes inaction) raises concerns for an individual’s health and wellbeing. In R v Morgentaler (1988), the Supreme Court of Canada considered the psychological stress that a pregnant woman endured because the Criminal Code restricted her access to an abortion.[9] Chief Justice Dickson, writing for the majority, identified the potential for a breach of an individual’s right to security of the person where state action causes a serious and profound effect on one’s psychological integrity. However, the Court ruled that the anxiety caused by the particular restrictions imposed by the state on access to abortion did not infringe on the individual’s right to security of the person.

If a Charter challenge is ever initiated by Alberta’s transgender community, the courts may be asked to revisit the question of when a state action has a sufficient effect on an individual’s psychological integrity that it violates their right to security of the person.

FURTHER READING

Alexandra Bailey, Transformations in Funding for Sexual Reassignment Services, Centre for Constitutional Studies (19 June 2008).
GENDER IDENTITY: Your Rights and Responsibilities, Ontario Human Rights Commission.

[1] “Transgendered Albertans file human-rights complaints,” cbc.ca (15 April 2009).

[2] Legislative Assembly of Alberta, Alberta Hansard (14 April 2009) at 618.

[3] “Health Funding,” Government of Alberta, Ministry of Health and Wellness.

[4] Legislative Assembly of Alberta, Alberta Hansard (14 April 2009) at 618.

[5] Legislative Assembly of Alberta, Alberta Hansard (4 May 2009) at 934.

[6]R.S.O. 1990, c. H. 19 at section 1: “Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.”

[7] Hogan v Ontario, 2006 HRTO 32.

[8] Human Rights, Citizenship and Multiculturalism Act, RSA 2000, c H-14 at section 4: “No person shall (a) deny to any person or class of persons any goods, services, accommodation or facilities that are customarily available to the public, or(b) discriminate against any person or class of persons with respect to any goods, services, accommodation or facilities that are customarily available to the public, because of the race, religious beliefs, colour, gender, physical disability, mental disability, ancestry, place of origin, marital status, source of income or family status of that person or class of persons or of any other person or class of persons.”

[9] [1988] 1 SCR 30.

New Chief Commissioner of the Alberta Human Rights and Citizenship Commission

Lindsay Blackett, Minister of Culture and Community Spirit, has announced that, after 14 years of service on the Alberta Human Rights and Citizenship Commission, Charlach Mackintosh will step down as Chief Commissioner. He will be replaced by David Blair Mason, a retired judge from Calgary. Mason plans to make it a priority to add sexual orientation to the grounds of discrimination prohibited by Alberta’s human rights legislation.[1]

Blackett has indicated that the Sheldon Chumir Foundation’s recommendations[2] for reform of the Alberta human rights regime will be part of the government's review of the Alberta human rights commission. The foundation’s recommendations include increasing the profile of the human rights commission and bettering its reputation, and improving Albertans’ access to the commission by making legal assistance available to those involved in human rights disputes, both to those making complaints and to those accused of violating human rights law. The Sheldon Chumir Foundation also recommends that the Chief Commissioner report directly to Alberta legislative assembly and that it add “Aboriginal heritage” as a prohibited ground of discrimination under the legislation.

Further Reading:

Alberta, Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14.
Sheldon Chumir Foundation, Toward Equal Opportunity for all Albertans: Recommendations for Improvement of the Alberta Human Rights Commission (Calgary, 2008).

[1] Thaddeus M. Baklinski, “New Alberta Human Rights Chief Commissioner to Work to Add ‘Sexual Orientation’ to Legislation” (6 February 2009), online: LifeSiteNews.com <http://www.lifesitenews.com/ldn/2009/feb/09020606.html>.

[2] Sheldon Chumir Foundation, Toward Equal Opportunity for all Albertans: Recommendations for Improvement of the Alberta Human Rights Commission (Calgary, 2008).

National Press Celebrates the Prospect of Police Investigations

Promoting hatred is a criminal offence under the hate propaganda sections of Canada’s Criminal Code (318 through 320.1).[1] Allegations made under those sections are investigated by police officers and prosecuted by Crown prosecutors. This means that guilt in those cases must be proven at a standard of “beyond a reasonable doubt.”

Complaints about discrimination can also be made to the Canadian Human Rights Commission (CHRC) under section 13 of the Canadian Human Rights Act (CHRA).[2] Complaints about discrimination under theCanadian Human Rights Act must allege breaches of section 2 of that Act, which forbids:

discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.[3]

Accusations of discrimination under the CHRA are interpreted on the civil standard of “reasonable probability.” The few cases of discrimination by a private citizen promoting hatred, decided by the CHRC, “almost all involved expression that is so extreme and hateful that it may be seen as advocating or justifying violence against the members of an identifiable group.”[4]

In December 2007, complaints were made under the CHRA against two national press reporters who were accused of promoting hatred. Members of an identifiable group, as defined by section two of the Act (see above), complained that they had been discriminated against. The CHRC ruled that there was no discrimination; however, the commission wondered whether it should be hearing complaints that private citizens were promoting hatred. Thus, the CHRC hired law professor Richard Moon to review the situation and present a report.[5] He came to the conclusion that the CHRC’s decisions had come to duplicate the provisions of the Criminal Code. Accordingly, Moon questioned why the CHRC was replicating the functions of a criminal court. He recommended that section 13 be removed from the CHRA.[6] His recommendations have not been implemented.

A number of editorial writers see this as a victory for freedom of the press with the result that journalists can shed the bureaucratic nightmare of answering to every complaint registered with the CHRC.[7] On the other hand, using the police and the criminal courts to deal with accusations promoting hatred, says Mark Freiman, a lawyer with Canadian Jewish Congress, “is a blunt tool…”[8]

[1] Criminal Code, R.S.C. 1985, c. C-46, s. 318 - 320.1.

[2] Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 13.

[3] Ibid. at s. 2.

[4] Canadian Human Rights Commission, Report to the Canadian Human Rights Commission Concerning Section 13 of the Canadian Human Rights Act and the Regulation of hate Speech on the Internet by Richard Moon (Ottawa: Canadian Human Rights Commission, 2008).

[5] Ibid.

[6] Ibid. at page 3.

[7] Rory Leishman, “Human rights commission stifles freedom of expression” London Free Press (3 December 2008) online: http://lfpress.ca/newsstand/News/Columnists/Leishman_Rory/2008/11/29/7574646-sun.html. Ezra Levant, “A victory for free speech” National Post (25 November 2008) online. “Criminal Code the most effective tool to control hate speech on the Net” Vancouver Sun (26 November 2008) online. “At last, common sense on free speech” The [Montreal] Gazette (26 November 2008) online.

[8] Mark Freiman, “When Free Speech Becomes Dangerous,” letter to the editor Globe and Mail (26 November 2008) online.

One Disability, One Airfare

On November 20, 2008 the Supreme Court of Canada dismissed an appeal in Air Canada et al. v. Canadian Transportation Agency et al.[1] The decision means that air carriers and airports must accommodate persons with disabilities, even if doing so requires the provision of an “extra” seat. The appeal was the result of a ruling made by the Canadian Transportation Agency in January 2008 requiring that both airports and air carriers make accommodations for people with the following disabilities:

“those persons who are required, under the terms of the carriers’ tariff, to be accompanied by an Attendant;
those persons who are disabled as a result of obesity; and
those other persons who require additional seating for themselves to accommodate their disability to travel by air.”[2]

The airlines were directed to provide an “extra” seat (at no cost to the passenger) to those who need the assistance of an attendant, or who do not fit into a single aircraft seat. Airports were directed to develop plans to alert airlines of the decision. Both parties were given until January 10, 2009 to make plans to accomplish the directive.

[1] Supreme Court of Canada, “Air Canada et al. v. Canadian Transportation Agency et al.” http://www.scc-csc.gc.ca/information/cms-sgd/dock-regi-eng.asp?32729.

[2] Canadian Transportation Agency, “Decision No. 6-AT-A-2008” (January 10, 2008) at para 25. http://www.cta-otc.gc.ca/rulings-decisions/decisions/2008/A/AT/6-AT-A-2008_e.html.