Censure the censors
Human rights commissions are being used to silence Canadians. Can anything be done to stop them?
Kevin Steel - September 17, 2007
Attacks on free speech continue across the country, even in supposedly freedom-loving Alberta. In a tribunal hearing which began on July 16, a former pastor, Stephen Boissoin, has been charged with inciting hatred towards homosexuals. Like in the Free Dominion case, an academic--in this instance University of Calgary assistant professor David Lund--claims that Boissoin violated the province's human rights code in a 2002 letter-to-the-editor Boissoin wrote to the Red Deer Advocate under the title "Homosexual Agenda Wicked." Similar to the Free Dominion complaint where Gentes said she is not a Muslim, Lund says he is not gay.
The Boissoin case has been notable so far for a pre-hearing ruling that represents a small reversal of the trend to limit speech. Back in 2005 after Lund made his complaint, Boissoin decided to go public by publishing the human rights complaint material on the website of the Concerned Christian Coalition to support fundraising for his defence. Lund tried to shut him down, claiming the material was confidential and so requested a publication ban. The panel ruled against Lund on May 4, 2006.
That ruling came right on the heels of larger reversal of the trend against speech in Saskatchewan. On April 13, 2006, the Saskatchewan Court of Appeal overturned a 2002 Court of Queen's Bench ruling that supported a 2001 decision of the Saskatchewan Human Rights Commission against Hugh Owens. In 1997, Owens published an ad in the Saskatoon StarPhoenix that referred to Biblical passages which condemned homosexuality. Accompanying the citations was an illustration of two male stick figures holding hands inside a circle with a bar through it. The SHRC had fined both Owens and the newspaper $1,500 for violating s. 14(1)(b) of The Saskatchewan Human Rights Code. It was only a partial victory for freedom because the Appeal court didn't rule that the section of the code was in violation of the Canadian Charter of Rights. The judges simply stated that the SHRC had been too lenient in its interpretation of the Code. Whether that ruling will have any impact remains to be seen. Tom Ross, a labour employment lawyer with McLennan Ross in Calgary, thinks other HRCs were paying attention. "This case certainly helps to rebalance the jurisprudence in Saskatchewan and I think it will have some impact elsewhere," he says.
Human rights commissions were never meant to control the press or be arbitrators of expressions of opinion. They were set up to combat discriminatory acts in areas like employment and housing. Alan Borovoy was a young lawyer in the 1950s and one of those who lobbied the Ontario government to establish the first human rights commission in Canada in 1961. He has been general counsel to the Canadian Civil Liberties Union since 1968, but Borovoy wrote a letter to the editor of the Calgary Herald, published on March 16, 2006 in which he bemoaned the way the human rights bodies were being abused. "During the years when my colleagues and I were labouring to create such commissions, we never imagined that they might ultimately be used against freedom of speech," Borovoy wrote.
In interview, Borovoy says that early human rights legislation did address communication. "But those communications essentially were really ways to shore up the discriminatory acts that the legislation was primarily designed to deal with. So if they said, "No blacks allowed," or "No Jews allowed," that would be the kind of speech that was always seen as subject to this kind of legislation," Borovoy says. Discriminatory advertisements and discriminatory application forms were not permissible.
Borovoy says he first started noticing the attack on free speech back in the 1990s. In particular, he recalls referring to two cases that caused him concern. The first was in Ontario. In 1993, feminists attempted to bring a human rights complaint against a convenience store owner for selling pornographic magazines, claiming the publications constituted discrimination against women. "They tried to squeeze it within the framework of that legislation, talking about discrimination. I remember arguing that if this were to hold, they could go into libraries and police them for what they've got on the shelves, Oliver Twist and The Merchant of Venice," Borovoy says. That complaint was eventually dismissed. The second was the Doug Collins case.
In 1999, a BC human rights tribunal found North Shore News columnist Collins guilty of "likely" exposing Jews to "hatred and ridicule" for four columns he wrote in 1994. It was actually the second attempt at trying to nail Collins. In 1996, Victoria B'nai Brith member Harry Abrams had lodged a complaint against Collins for one column he had written titled "Swindler's List" an attack on the Steven Spielberg movie Schindler's List. A 1997 tribunal ruled in Collins favour. Abrams then lodged another complaint, this time citing four columns, including the one he originally complained about, claiming that together the columns exposed Jews to hatred. This time the commission ruled in Abrams favour. Though the BCHRC fined Collins and his paper $1,500, it also ordered them never to print similar material again. With that ruling, the BCHRC effectively claimed control over the press. Collins appealed to a real court, asserting that human rights legislation was unconstitutional because it infringed on freedom of the press. The BC Court of Appeal ruled against Collins and the case never did reach the Supreme Court after Collins died in 2001.
Murray Mollard, executive director of the B.C. Civil Liberties Association, is one who would like to see the Collins ruling--that human rights legislation has the ability to control the press--tested at the Supreme Court level, though he is concerned that there it could get upheld. "Given jurisprudence in Canada on hate speech provisions in the Criminal Code, for example, there's a bit of an uphill legal battle to strike down that legislation as unconstitutional," Mollard says. There are good arguments for it being struck down, Mollard believes, but the trend has been in the Supreme Court of Canada regarding the hate speech provisions to uphold the constitutionality of those.
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