In the earlier parts of this review of the Boissoin Brief (you might be asking how it takes at least 4 parts of a review to review a Brief), I dealt mainly with those parts of the brief that responded to the specifics of the Boissoin case, and its handling by the Lori Andreachuk led Panel. But now I turn to the more important aspects of the Appeal, whether in fact the legislation that the Panel alleged to be acting upon was in fact legal, or I guess whether it too suffers from the ultra vires, though Mr. Chipeur reserved that cool term for case specifics earlier reported on.
I must admit that it is easier to comment on things that deal with people and he said/she said, and whether that might or might not be legal. Most of what follows is about whether this piece of legislation mainly the HRCM Act is legal in the context of The Charter, or whether it is really a dust bunny that should be vacuumed up and put on the curb of a higher moral order.
First, Mr. Chipeur states boldly, though I believe correctly, that Section 3(1) of the HRCM Act
is in violation of Sections 2(a) and 2(b) of The Canadian Charter of Rights and Freedoms. Section 3(1) says the following:
Sections 2(a) and 2(b) of The Charter state:
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. 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;
But The Charter does have section 13, which has limits to it:
13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that person or those persons are identifiable on the basis of a prohibited ground of discrimination.
This was interpreted by the 1990 Supreme Court of Canada, Taylor case in which a majority of the Supremes, (not the Diana Ross version) supported Section 13, and a documented minority claimed it was unconstitutional.
(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.
First of all, the Canadian legislation used the word repeatedly, allowing for an individual to be warned or to have had a bad day, and made a mistake. But, Chief Justice Dickson also limited its use to things that should never have been published in the first place, regardless of the intent of the publisher, and also where ardent and extreme feelings of ill will are generated. Of course, the only one of these conditions that can be met somewhat objectively is repeatedly. But them is repeated twice, 3 times or 103.
But, Mr. Chipeur, no surprise here, prefers the dissenting opinion in Taylor, rendered for the dissenting Supremes by Justice McLachlin, particularly in light of the misconduct of the Canadian HRC relative to Section 13 as he cites in Warman V. Northern Alliance and Jason Ouwendeeyk, 2009 CHRT 10.
Mr. Chipeur then goes on to say in his Paragraph 27 (b) that "The reasoning of Justice McLachlin is consistent with current commitment by Canadian society to freedom of expression ...". Boy, I wish that that were a true statement, but the evidence of the abuses of our freedom of expression so many places we look tell me that the commitment is lacking. Anyway, he then references the Moon Report to the Canadian HRC available here, and a report from the Sheldon Chumir Foundation called Towards Equal Opportunity for all Albertans available here.
Mr. Chipeur notes that when Ezra Levant republished THE LETTER, the Canadian HRC refused to take action against him for it. He failed to comment that that particular dog bites, whereas his dog has a gentler disposition, and has been more likely to be able to be beaten with less immediate consequence. In the case of Ezra Levant, both his bite and his bark are significant, and immediate.
He goes on to quote from Justice McLachlin's dissent, because there was good stuff in it. For example, she spoke of the Canadian Civil Liberties Association posing on the phone as employees desirous of hiring white only employees to expose discrimination, but being in contravention of Section 13, when so doing. Just a thought, wasn't the group from the Canadian HRC who posed as nazi racists doing the same thing, and therefor violating the law when they did their Hiel Hitler shtick over the Internet over the last few years?
Anyway, Justice McLachlin says in the absence of proof of harm, it is difficult to support the law. Methinks thought crime, and feelings hurt again.
But here is the meat of her statements against Section 13, and conversely the Alberta Section 3(1):
Moreover, the chilling effect of leaving overbroad provisions "on the books" cannot be ignored. While the chilling effect of human rights legislation is likely to be less significant that that of a criminal prohibition, the vagueness of the law means that it may well deter more conduct than can legitimately be targeted, given its objectives.By the way, for those of us not in the know, Justice McLachlin has been the Chief Justice of Canada since 2000, which is in part why Mr. Chipeur feels free to quote her dissenting opinion, even though it predates her Chief role.
In the end result, I cannot avoid the conclusion s. 13(1) is capable of catching a broad range of expression beyond that which can be justifiably limited in pursuit of the objective of preventing discrimination and maintaining social harmony and individual dignity. To the extent it catches such an expression, it is not carefully tailored to its aims and lacks a rational connection to its objectives.
Next time out, I will look at a specific quote Mr. Chipeur used from the Moon Report and the Chumir Foundation Report.
Oh, you can still donate to Stephen's cause here on his site.