The Shotgun Blog
« Hickory Dickory Debt | Main | What to do about Iran? »
Wednesday, January 23, 2008
'Entirely contrary to law'
I have been receiving nothing but positive response to my op-ed published today in the National Post (see below).
Among the more memorable missives was one from a retired lawyer who, upon reading about the Alberta Human Rights Commission's decision to allow the province's censorious Human Rights Act to trump the Charter of Rights and Freedoms, decided to investigate the matter further.
His excellent (and, ultimately, damning) analysis of the Boissoin case is below. (He asked me to refrain from naming him.)
The Boissoin case - critical points
1. The correct interpretation of section 3(2) of the Alberta Human Rights Act, and
2. The relationship between the Canadian Charter of Rights and Freedoms and the Alberta Human Rights Act.
First, here are the relevant parts of section 2 of the Charter -
FUNDAMENTAL FREEDOMS.
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.
And here is the text of the relevant parts of Section 3 of the Alberta legislation -
"Discrimination re publications, notices
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) Nothing in this section shall be deemed to interfere with the free expression of opinion on any subject."
----------------------------------------
Alberta Alberta Alberta Alberta
My short analysis & opinion
In her disposition of the Lund/Boissoin decision, Lori Andreachuk said - "I ...take the view that s.3(2) required a balancing of these freedoms afforded to individuals under the Charter, with the prohibitions in s. 3(1) of the Act." That view is not consistent with the plain words of section 3(2). Section 3(2) certainly requires a balancing between section 3(1) and 3(2) of the Alberta Act, but it is entirely silent on the matter of it being in any way "balanced' against section 2 of the Charter. That is the first flaw in her argument, and it is a flaw that even taken by itself, invalidates her whole decision.
But that is not her only error. She also says that she has considered the freedoms set out in the Charter - and that she has "... found that this protection does not trump the protection afforded under the
Exception where express declaration
" 33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter."
It is abundantly clear from this that while a limited power to trump the Charter is conferred on the legislature of a Province, it can only do so expressly, by an Act of the Provincial legislature. The legislature of
For these reasons, I believe that the Andreachuk decision in the Lund/Boissoin case was so flawed as to be entirely contrary to law.
Posted by Terry O'Neill on January 23, 2008 in Current Affairs | Permalink
TrackBack
TrackBack URL for this entry:
http://www.typepad.com/t/trackback/22305/25417098
Listed below are links to weblogs that reference 'Entirely contrary to law':
Comments
You might want to direct your retired lawyer to the case of Kane v. Alberta Report *
It is a Queens Bench decision and so binds the HRC in Alberta
At para 85
What is required to properly balance the two competing interests is an examination of the nature of the statement in a full, contextual manner which recognizes the objectives and goals of the legislation and is Charter sensitive. It will also be necessary for the Panel to apply other principles enunciated by the Supreme Court of Canada in relation to s. 2(b). In particular it is essential that the Panel consider the nature and context of the expression and the degree of protection which this type of expression is afforded (Keegstra at 766; and Taylor at 922). The Panel should also give full recognition to the other provisions of the Charter which may come into play. These may include s. 15 (equality rights); s. 25 (aboriginal rights); s. 27 (multicultural rights); s. 28 (sexual equality); and s. 2(a) (freedom of religion).
As you can see, rather than a "flaw" that invalidates her whole decision she is, in fact, following the directions of the statute as it has been judicially considered.
The section 33 bit is just plain whack.
Posted by: Nbob | 23-Jan-08 6:16:03 PM
*Kane v. Alberta Report, 2001 ABQB 570 (CanLII
Posted by: Nbob | 23-Jan-08 6:17:40 PM
Oh and here's para 95 - something Levant might have addressed were he not so hot to launch a collateral attack on the legislation that was found to be constitutional more than a dozen years ago:
94] In every case, including those in which members of the media are named as respondents, it will be incumbent upon the Panel to look carefully at all of the circumstances. In those cases where the media is named as a respondent, the Panel’s consideration will generally entail a review of how the article was reported. This might include factors such as: the tone of the article; whether both or only one side of an event was reported; and whether there was any editorial or commentary surrounding the statement, and, if so, whether it was disapproving or supportive. This list is not exhaustive. Many things will determine whether a reported statement is discriminatory. The media must remain responsible for how they report what may be sensitive subject matter.
Posted by: Nbob | 23-Jan-08 6:24:49 PM
So the HRC has the blessing of the government to trod on our rights? How does this negate the illegality of contradicting rights that are guaranteed? Granted that was not your arguement, I just fail to see how freedoms can be removed for some, and guaranteed for others. Sounds an awful lot like discrimination to me. As a white middle class, north american male, I already know that all of the worlds problems are my fault. Can I go confess to the HRC? Let them know that I'm a bigoted ass sometimes? Maybe they would be lenient.
Posted by: Sam T. | 23-Jan-08 6:58:39 PM
Sam -
>So the HRC has the blessing of the government to trod on our rights?
No they have the blessing of the government to balance competing rights.
>How does this negate the illegality of contradicting rights that are guaranteed?
see s.1 of the Charter :
"The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
The SCC said, a long time ago in a case called Taylor, that eliminating discrimination is justified in a free and democratic society.
Posted by: Nbob | 23-Jan-08 8:01:18 PM
Which just goes to show that the "rights" supposedly guaranteed by the Canadian constitution aren't worth the paper they're printed on.
Posted by: Diogenes | 23-Jan-08 10:11:38 PM
balance competing rights? since when was not being offended a right, the real offense is that these inquisitions exist at all
Posted by: x2para | 24-Jan-08 8:46:12 AM
'that eliminating discrimination is justified in a free and democratic society.'
What a crock. It contradicts itself since the actions taken to 'eliminate discrimination' are themselves discriminatory and result in someones loss of freedom.
Don't like what I say, well then, you are justified in shutting me up!!
Orwell called it and we got it.
Posted by: Marko | 24-Jan-08 12:55:59 PM
Steyn demolished former Chretien flunkey Kinsella today
in one of the funniest pieces I've seen since I started reading Taki in the London Spectator
(The Speccy) where I first encountred the brilliant and witty World class Journalist and Author,Canadian
Mark Steyn,thought by many real professional writers,reporters and journalists as the best in North America. People who worked in PMO's like Chretien's and Martin's are looked upon as whores in the real Liberal Party -alas long gone amid the Muslim Horde and the strange bed fellows.MacLeod
Posted by: Jack MacLeod | 24-Jan-08 2:45:21 PM
Yes, the prosecution of Stephen Boissoin was entirely contrary to law, but your lawyer friend is out to lunch. There's no Charter issue here. The Alberta Human Rights Act clearly complies with the Charter. You'll note it contains an express protection of freedom of speech, and an absolute defence of expression of religious belief. In addition, of course, it is subject to the Alberta Bill of Rights, which requires every Act of the legislature to be interpreted so as not to impair freedom of speech.
It's clear that the Act only empowers the Commission to punish speech which is otherwise illegal; that is, in order to find against its target, the Commision must demonstrate that the speech complained of was either civilly actionable, and would if sued on have resulted in civil liability, or constituted a criminal offence and would if prosecuted have resulted in conviction. This in turn requires that all the defenses that would be available in civil or criminal court be available before the Commission, including the defence of fair comment and the absolute defence of truth. Only on this basis is the authority of the Commission over speech in any way comprehensible, let alone justifiable: it is intended to function as an alternative remedy against speech which is already illegal. It is on the one side more expedient for the complainant and on the other more lenient on the target.
The problem is that the Commission, charged with enforcing and obeying the law, is instead deliberately breaking the law. The scandal is that the courts are letting them do it. The Charter doesn't enter the picture. It applies only to actions of government. These speech suppression cases are the actions of rogue agents of the government, violating the terms of their employment and the laws governing them. The refusal of the courts to stop them, however unlawful (and it is scandalously unlawful), is not a Charter matter. The Charter does not apply to judges.
Of course the opinion of a judge is not law. It is merely the judge's opinion of what he thinks the law is. It can be right; it can be inadequate or irrelevant; or it can be wrong. The Human Rights Commission is bound to obey the law. It must determine the law in the light of judicial opinion, but where that opinion is demonstrably wrong, as it is here, the Commission is bound NOT to follow it.
Nbob is a well-known troll who amuses himself by pretending to be a lawyer, although it is obvious that he has no legal education and is not competent to form an opinion on even the most elementary legal matter. He's also a shameless liar. It is not wise to rely on anything he says.
Posted by: ebt | 27-Jan-08 2:55:32 PM
Post a comment