Levant on Anti-Homosexual Pastors

In an article in the National Post titled, Drug dealers get the benefit of the Charter, but not pastors accused of homophobia, Ezra Levant, founder of the Western Standard and currently with Maclean’s, criticizes Lori Andreachuk in Darren Lund
v. Stephen Boissoin and the Concerned Christians Coalition Inc. (2007),

…An even more terrifying precedent recently was set in Alberta. The case involved a letter to the editor written by a Christian pastor and published in the Red Deer Advocate newspaper. The letter was a zealous, even rude, expression of the pastor’s belief that homosexuality was a sin, and that there was a homosexual political “agenda” that had to be stopped. But instead of joining the debate by writing a letter to the editor, a local teacher complained to the human rights commission.

The commission’s one-woman panel — a divorce lawyer with no expertise in constitutional rights — ruled that “the publication’s exposure of homosexuals to hatred and contempt trumps the freedom of speech afforded in the Charter.” That was it: Freedom of speech, and of the press, and religion, all of which are called “fundamental freedoms” in our Constitution, now come second to the newly discovered right of a thin-skinned bystander not to be offended…

In a ruling that spanned some 80 pages, Andreachuk spared just two paragraphs to explain why she was overruling the Charter’s guarantee of freedom of speech. In real courts, a demanding legal hurdle called the Oakes Test must be passed before that can be done. The reason for infringing a Charter right must be “pressing and substantial,” the infringement couldn’t be “arbitrary or irrational,” and it must be as “minimal” as possible. None of that analysis was even attempted by Andreachuk — that’s boring legal stuff for real judges in real courts. The Oakes Test was named after David Oakes, a man charged with trafficking of hash oil, who beat the rap using the Charter. Accused drug dealers get the benefit of the Constitution, but not accused pastors…

(emphasis added)

A Reader’s Response

One reader responded to Ezra Levant’s article in the National Post with these clarifications:

…Anyone who was half paying attention in 1st year constitutional law should know that the Oakes test is applicable only when one is challenging the constitutionality of a particular legislative provision and is not applicable to decisions made under that legislation (although the decision can not be made in a constitutional vacuum).

If one were to challenge the sections of the Criminal Code or provisions of the common law respecting search and seizure those laws would have to pass the Oakes test. If one were to challenge the validity of a particular search the Oakes test would not apply although some balancing of constitutional rights would still have to be considered (e.g. reasonable expectation of privacy vs. state interests).

Provisions like s. 3 of the Alberta Human Rights Act passed the Oakes test long ago (see Canada v. Taylor, [1990] 3 S.C.R. 892- which, btw was cited in the Boissoin decision at para. 340 ). Had the pastor re-languaged his bigotry into something more closely resembling a cogent argument no doubt the required balancing would have swung his way.

Citing Boissoin

The section the reader refers to:

I find, based on the evidence and an analysis of the law and case law, that in the within case s. 3(2) does not act as a defence to the breach by Mr. Boissoin and the CCC of s. 3(1) of the Act. I find, as did the Supreme Court of Canada in R v. Keegstra, [1990] S.C.R. 697, as quoted by Justice Rooke at paragraph 67 in Re Kane, the following:

The harm caused by discriminatory and hate/contempt-based expression is well-recognized. The Supreme Court of Canada affirmed in R. v. Keegstra [1990] 3 S.C.R. 697 (S.C.C.); Attis v. New Brunswick District No. 15 Board of Education, [1996] 1 S.C.R. 825 (S.C.C); and Taylor, that protection from discriminatory and hate/contempt-based expression is a pressing and substantial objective, and is justified in a free and democratic society. The Preamble of the Act speaks of the inherent dignity and inalienable rights of all persons, of the importance of multiculturalism as a fundamental principle and a matter of public policy. Such guarantees and eloquent statements would be hollow if s. 2(2) is interpreted as an absolute defence, with the respondent merely having to establish that his or her expression was opinion.

In short, I agree with the sentiments of the majority in Taylor, per Dickson C.J.C., at 930, that:

…having decided that there exists an objective in restricting hate propaganda of sufficient importance to warrant placing some limits upon the freedom of expression, it would be incongruous to require that s. 13(1) exempt all activity falling under the rubric of ‘expression’.

More Comments

Levant’s criticisms of Tribunals in general also generated a response,

Rules of court don’t apply. Normal rules of evidence don’t apply. The commissions are not neutral; they’re filled with activists, many of whom aren’t even lawyers and do not understand the free-speech safeguards contained in our constitution.

The reader continues,

While human rights tribunals are not subject to the Rules of Court of the Canada Evidence Act neither are any other quasi-judicial bodies. However, all such tribunals are still subject to the requirements of procedural fairness and natural justice ( as anyone who was paying attention in 1st year administrative law should know).

Rules of Court in the Act the reader refers to are,

51. (1) The court may frame rules and orders in relation to procedure and to the evidence to be produced in support of the application for an order for examination of parties and witnesses under this Part, and generally for carrying this Part into effect.

The reader concludes by clarifying that Tribunal decisions are made by more than a single person,

As for some of the factual inaccuracies

– it was a 3 person panel chaired by Ms. Andreachuck.

– harm was proved to have come from the letter ( see para. 354 )

Indirect harm

The harm the reader cites demonstrates that the likelihood of exposing the community at risk to more hatred was sufficient, and the effect would be an increase threat level to their physicial safety:

While the evidence of the beating of the gay man two weeks after the publication of the letter was indirect, I find in addition, that there was sufficient nexus to conclude circumstantially, that the two matters may be connected. In that regard, I rely on the evidence of Mr. Douglas Robert Jones that homosexuals are a vulnerable population in society and are more vulnerable in settings like Red Deer, which is a smaller community. I also accept his evidence that homosexuals are marginalized in the community and that young people are more impressionable to letters like this than others. I also accept the evidence of Dr. Alderson, who reported that in reading Mr. Boissoin’s letter, it caused a surge of personal fear in himself and that he had talked to hundreds of people in the gay community about Mr. Boissoin’s letter and all were horrified and fearful. It was adduced into evidence that it was reported in the Red Deer Advocate that the 17 year old victim (at the time) did mention Mr. Boissoin’s letter as making him feel fearful. I also accept Dr. Alderson’s evidence that Mr. Boissoin’s letter was likely to expose gay persons to more hatred in the community and that the effects of hate literature is to increase the threat level to the physical safety of gays.

Be Thankful for Tribunals (They Cost you Less)

Levant had also cited another Alberta case, Ruby Anne Repas v. Albert’s Family Restaurant and Lounge (Red Deer),

In 2004, Albert’s Family Restaurant in Red Deer was ordered to pay $4,900 to a kitchen manager who was fired because she had contagious Hepatitis-C — illegal discrimination based on disability, said the commission.

The response from the reader on this case was as follows:

– the medical evidence, known to Alberta Family Restaurant at the time, was that the manager did not present a risk so long as standard kitchen hygiene was followed.

It is fortunate for the Restaurant (and the other employers mentioned in that paragraph) that human rights tribunals have exclusive jurisdiction to deal with employment matters involving discrimination. Had the cases been treated as standard wrongful dismissal cases before a court the awards would likely be greater and they would have been on the hook for costs. $4,900 would have been $ 49,000 or more. It is much cheaper for a defendant to defeat a frivolous claim and cheaper for a losing defendant to have the matter come before a tribunal than a court.

Specifically, the evidence the Tribuanal reviewed was that the complainant,

…returned a short time later with a note from Dr. P.J. Bouch, stating that she had recently tested positive for Hepatitis C, but that “this should form no health risk if she was careful”.

Upon her return to the restaurant the complainant and Mr. Taliani went into the office whereupon she presented Dr. Bouch’s note to him and he commented “oh, you really do”, and again appeared shocked. He then told her “you cannot work here any more because I can’t jeopardize my family or my customers”.

A Little more on Oakes

Mary C. Hurley explains the Oakes Test in Charter Equality Rights: Interpretation of Section 15 in Supreme Court of Canada Decisions,

Section 1 reads:

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.

Asthe terms of the section make clear, no Charter protection is absolute. In the presence of a section 15 violation, the courts therefore undertake a separate section 1 evaluation to determine whether the infringement nevertheless constitutes a reasonable limit to the equality rights guarantee.

The government bears the burden of establishing that any Charter breach is justified. The governing approach to section 1 analysis detailed by the Supreme Court of Canada in R. v. Oakes(42) involves a two-step process. First, the objective of the legislation or government action must be shown to be sufficiently “pressing and substantial” to warrant overriding a Charter right. Second, the means adopted to attain that objective must be reasonable and demonstrably justified. This step entails a proportionality test in which the courts are required “to balance the interests of society with those of individuals or groups.” Three elements must be satisfied:

• the measures adopted must be rationally connected to the objective;
• the measures adopted should cause minimal impairment to the right or freedom in question; and
• there must be a proportionality between the effects of the measures limiting the right or freedom and the objective identified as being sufficiently important, and between the deleterious and salutary effects of the measures at issue.(43)

(see article for the development of the Oakes Test in full)

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