Sunday, December 6, 2009

Boissoin Victory in His Lawyer's Words

What The Judgment Means

I received an email from Stephen Boissoin this morning, as did his other friends and supporters, which was Gerald Chipeur's summary analysis of the judgment rendered by Justice Wilson in the case of Stephen Boissoin against Darren Lund. As you know from the many postings and articles about the case, it was a case of alleged, and in fact as far as the Alberta Human Rights Commission was concerned proven, egregious discriminatory hate written by Stephen Boissoin about homosexuals in one, count 'em, one letter to the editor of the Red Deer Advocate over 7 years ago.

Those of us who have been baffled at the perfidy of the Alberta HRC have long awaited the case getting to the Alberta Court of Queen's Bench, and then the ruling in the case. I have referenced this case in over 80 postings these last 6 months, wishing to understand what happened, and how and why. You can look over at the Label for Boissoin on the left hand side of this page to see the current number of posts I have made referencing the case, and click on it to access them specifically.

But, as the case has hopefully drawn to a conclusion, though there is a possibility that Darren Lund will appeal the ruling, probably at his own peril, it is appropriate to read what Stephen's lawyer, Gerald Chipeur, QC has as his brief analysis of the results. They are enlightening:
The decision of Justice Earl Wilson of the Court of Queen's Bench in Boissoin v Lund will have a significant long term positive impact on religious freedom in Canada:

1. The decision established a very high threshold for the conclusion that a publication is in violation of the "hate" provisions of Alberta's human rights laws. The prosecutor, Dr. Lund, told the Canadian Press that "If the language contained in the letter does not meet the threshold of hateful, I am not certain what possibly would." If Dr. Lund is right, then there will be no further prosecutions. The decision of the Alberta Human Rights Commission to withdraw from the case suggests that the Commission learned from Dr. Lund's mistake. There is no place for thought control in a free and democratic society.

2. Dr. Lund told the Calgary Herald that the decision of Justice Wilson "takes away the tools at our disposal". He is correct. The tools of censorship should not be available to prohibit freedom of expression in Canada. There is no circumstance in a free society where limitations on political or religious debate can be justified.

3. While the decision did not strike down Alberta's "hate speech" laws, it significantly limited the application of such laws. Justice Wilson properly pointed out that a province may not duplicate the federal Criminal Code rules outlawing hate crime. Furthermore, Justice Wilson interpreted the provision in question as only prohibiting hateful words that lead to discriminatory activity under the provincial human rights legislation. Justice Wilson found that Stephen Boissoin's letter to the editor was not hateful and did not cause discriminatory behaviour. It is difficult to conceive of a political or religious debate that would meet the two part test established in the legislation. Therefore, it is safe to conclude that in the future no religious or political debate will be found to be in breach of the current text of Alberta's human rights laws.

Gerald Chipeur, QC
So, for purposes of the Alberta HRCM Act and Section 3(1) and 3(2) of that act, a 2 part threshold has been defined for alleging discriminatory communication.

First, the province, and all other provinces would do well to heed this judgment, may not duplicate the Federal Criminal Code as it relates to hate speech. That is a big victory, as the Human Rights Commissions, including the one under J Ly in the nation's capital, have made their own parallel universe where they write and interpret their own legislation, and have made whatever they want to call hate speech out to be criminal like behaviour, though couched in their own terms of reference, and political correctness speak. This judgment can be seen as a deterrent at the Federal HRC/HRT level as well on the same basis.

The second determination is of equal significance. Justice Wilson found that HRC's/HRT's can only deal with hate as it relates to discrimination under their purview. In the case of Alberta, this means fundamentally discrimination in the workplace and the provision of goods and services. Basically, Justice Wilson stated that the Alberta HRC was ultra vires their legislative authority to have ever taken on this case, and others like it.

Congratulations to Stephen Boissoin, Gerald Chipeur and his team, and all others who supported Stephen in this long, drawn out case.

For a review of the particular and key wording in the Judgment, Rebekah over at Miss Marprelate has the skinny The Miss Marprelate Tracts: Boissoin Ruling Quotes.


Don Sharpe said...

Yes, congratulations to the Boissoin team of free speech champions! Lund would be a fool to appeal.

Walker said...

I agree - Lund was a censorious buffoon to launch such a case against Stephen Boissoin before. But in a real court, he would be foolish to try and pull the same kind of stunts that they allowed in an HRC Tribunal.

mbrandon8026 said...

Censorious Buffoon? A little strong mayhaps. How about Verbally Flatulent Misanthrope?