Thursday, July 23, 2009

Stephen Boissoin Appeal Document - Part 2

Let's Get Started with the Details

I was first introduced to the Stephen Boissoin case by Ezra Levant's seminal book "Shakedown". Shakedown is not seminal in the sense of being the first writings about the insanity that is the HRCs in Canada. But it is the seed upon which those of us who have had no reason to believe that organisations that work to preserve (hah) Human Rights provincially and federally are in fact doing something other than their public mandate.

But, having read what Ezra said about the Stephen Boissoin case, I was somewhat in a "Say it ain't so, Joe!" state. But, as I read blog postings and then court details I found out that the blog posters were not nut bars inventing fiction out of whole cloth, but concerned citizens, fearing for loss of freedom of speech that this case prophesied based on its outcome.

The Complainant, one Dr. Darren Lund, who is not even gay himself was allowed to complain against a letter to the editor that then Rev. Stephen Boissoin sent to the Red Deer Advocate. EGALE wanted nothing to do with this bit of buffoonery, but not so the Alberta HRC.

The Panel Chair, Lori Andreachuk, a noted QC and divorce attorney in Lethbridge Alberta should have divorced herself from this case, but no, she lumbered on, and hit one out of the park, apparently not the park the game was being played on as you will see but hit it out of the park she did.

Anyway, Ms. Panel Chair rendered the most absurd Decision that you could imagine, and Mr. Chipeur is taking it apart, comma by comma, and dot by tittle. As I read the Brief, which is not really (brief that is), I marvelled at the restraint in the legal language used to describe the situation, and the chicanery that occurred. I picture Mr. Chipeur using more colourful language as he spoke about this Brief with his associates, and then mellowed into legalese for purposes of presenting his Brief.

Here's the areas of the Appeal that I want to touch on today:

There is no Legal or Evidentiary Basis for the Conclusions of the Panel

So, if you are telling somebody that the decision they made in their court had no legal basis, oh and by the way, there was also no evidence to back up your decision either, you've said a mouthful my friend. It is tantamount to saying to someone: "You are stupid. And if you want a second opinion. You're ugly too." In other words, harsh words, but justified, and nice legalese to boot.

Mr. Chipeur points out that the Panel relied on evidence from 2 parties and indirect newspaper evidence.

One party, Mr. Douglas Robert Jones established that "homosexuals are a vulnerable population", which Mr. Chipeur claims validly is not an issue in the case. ie. So What.

Then, Dr. Alderson gave hearsay and therefor as Mr. Chipeur calls it unreliable evidence to say that "hundreds of gay people . . . were horrified and fearful". As Mr. Chipeur says rightly, this statement which was relied on was not tested by the testimony of any of the so called hundreds.

And third, the Red Deer Advocate story of the alleged beating of a gay teenager was appended to the Complaint of Dr. Lund with no direct or credible evidence. The reporter was not called to testify, nor was the victim, nor any police officers, nor was any record of an assault read into evidence even. There was not even a first name of anyone who was alleged to have been assaulted.

The article that was attached did not indicate that the victim felt fearful. Instead, he is reported to have said: "I feel the letter was just encouragement for people to go out and stop the gay rights movement."

Mr. Chipeur then says in his next paragraph: "It is clear that the Panel was strongly influenced in her (bold mine) Decision by evidence that was not properly before the Panel."

Mr. Chipeur then zings one by the Panel Chair Ms. Andreachuk when he quotes from Justice Veit in Vantage Contracting Inc. v. Marcil, [2004] A.J. No. 368:
The HRCM Act authorized appeals from Human Rights Panel decisions. In deciding that human rights panels had no particular expertise and required no particular deference, the Supreme Court of Canada held, in Dickason, that the court to which the panel's decision was appealed should examine the evidence before the panel "anew and, if deemed appropriate, make their own findings of fact".
In other words, unlike with cases that have come from a real court, Appeals courts have to look at cases from the Alberta Human Rights Panel as if they were coming from a kangaroo court run by idiots. That's about right, I guess. But, Mr. Chipeur says it with style and grace.

Then, he goes on to his last piece of this section starting with the cool words: "In any event". Then he says that the Alberta Panel is behind the times in their way of approaching the definition of hatred. The better approach is the Owens v. Saskatchewn Human Rights Commission [2006] S.J. No. 221 case. This is curious since in the reported Boissoin decision, Owens is cited as having been reviewed. It mustn't have agreed with the decision that the Panel had in mind.

Basically Owens was about an advertisement a Christian put in a newspaper citing bible passages as against the homosexual lifestyle. The Saskatchewan HRC decision against Owens was struck down on the basis that Mr. Owens advertisement was in the character of a position advanced in a public policy debate rather than a character of a message of hatred or ill will.

In this case, where Reverend Stehen Boissoin ministers to all youth regardless of sexual orientation, yet writes a letter to an editor of a newspaper, it sure sounds a lot like Owens. Funny how Comrade Lori missed that one in her 2007 decision.

It is interesting to note that the Alberta Human Rights Panel is not a party to this Appeal. Dr. Darren Lund is on his own here, and it looks good on him, although the Apberta HRC should be on the hook as well. I can't blame them for running and hiding.

But, the Alberta AG is involved only as it related to the Constitutionality issues, which we will get to later.

There were no surprises in this aspect of the Appeal, not even in the style and nuance with which Mr. Chipeur crafted his document.

In the world of Human Rights litigation, this is their OK Corral, and Mr. Chipeur is a top notch gun fighter. Only time will tell if Dr. Lund brings a gun fighter to the Corral with him, or if the Doc. takes a Holliday. Mid September should be interesting.

The document is still available on Stephen's own site here.

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