ARPA delegates met with Alberta MLAs, including the Justice Minister, in March of 2013. We discussed the removal of Section 3 from Alberta’s Human Rights Act as a means of protecting free speech. Based on these meetings, we are confident that reform is realistic. But for it to happen, our leaders need to hear from the public. We call on our readers to make use of EasyMail and urge our MLAs to protect our basic freedoms by scrapping Section 3. Without feedom of speech how can we speak up in favour of any other freedom?
Only BC, Alberta, and Saskatchewan have these infamous sections in their human rights codes, allowing “hurt feelings” as a basis for a human rights complaint. Pastor Stephen Boissoin is the best known victim of this section. Below is the content of the EasyMail letter that can easily be modified. Following this (and attached) is a point-form description of why Section 3 can and should be removed.
The Alberta Human Rights Act & Free Speech Talking Points
– The Alberta Human Rights Act currently attempts to ban hateful publications in section 3 (see below to read this section of the Act).
– The Supreme Court of Canada recently released a decision (Saskatchewan (Human Rights Commission) v. Whatcott) on the constitutionality of a similar section in the Saskatchewan Human Rights Code (section 14). The Supreme Court upheld the legislation as “reasonable”. However, the Supreme Court clearly stated that there are two other “reasonable” alternatives open to the legislature in dealing with hate speech: the free and open “marketplace of ideas” approach or the use of the Criminal law only to limit hate speech (see para. 102-106 attached). These approaches can be adopted by our legislature.
– There is NO constitutional requirement to have hate speech provisions. In fact, most provinces do not have hate speech laws. I doubt any would try to make the argument that Ontarians suffer more hate than those in Saskatchewan or Alberta as a result. However, the argument that Albertans suffer a greater chill on their free speech can certainly be made!
– The Supreme Court’s ruling attempted to tighten up the controls on administrative tribunals hearing and deciding hate speech offences; however, their decision left much to be desired – so much so that we urge the Alberta legislature to adopt the third approach to hate speech: limiting these restrictions to the Criminal Code.
– Some of the problems with the Supreme Court’s ruling include:
o No proof of intent to cause hatred is necessary (para. 58, 127);
o No proof of measurable harm is necessary – it is enough that the publications in question are “likely to expose” someone to hatred (para. 132-135);
o While the Court says hate speech should be judged objectively, the reality is that hatred is purely a subjective emotion. The Court recognizes this as problematic (para. 37) but still proceeded with the “reasonable person standard”: if a “reasonable person” deems the speech to be hate speech, then it is.
o Truth is still not a defense (para. 140) despite the protestations of leading academics and jurists. This is particularly troubling. Truthful statements should never be prosecuted as hate speech or as anything else.
o Note as well that the regular defenses afforded in a criminal prosecution are not available in an administrative setting: no right to be presumed innocent, no right to counsel, no right to have the allegations proved beyond a reasonable doubt.
– As noted by other commentators, shakedowns can still happen; the history of the modern human rights industry proves this. Allegations of hate speech will be settled quickly for large sums of money in order to avoid costly hearings.
– These problems have played out right in our own province. This section has been misused and abused in the past and nothing in this new ruling will stop that. Two examples from Alberta hit this point home:
o In the case of Johnson v. Music World Ltd., 2003 AHRC 3, a complaint was brought forward about this song:
Kill The Christian
You are the one we despise / Day in day out your words compromise lies / I will love watching you die / Soon it will be and by your own demise / Buried in hypocrisy / Lacerate your faith in God / Morally diseased / On the cross of Calvary your body bashed defeated stabbed / Blessing as you hate / Loyal to your enemies / Monetary faith / As him you will pay for the lies of your prophecy / Satan wants you dead
Kill the Christian, kill the Christian / Kill the Christian, kill the Christian / Kill the Christian, kill the Christian, kill the Christian / Armies of darkness unite / Destroy their temples and churches with fire / Where in this world will you hide / Sentenced to death, the anointment of Christ
In due time your path leads to me / Put you out of your misery / The death of prediction / Kill the Christian / Kill the Christian, dead!
o The Tribunal panel, a Ms. Lori Andreachuk, ruled that “there is very little vulnerability of the target group” and that “there is very little likelihood of a representation to expose a person or class of persons to hatred or contempt in the context of this particular medium which is unlikely to be taken seriously or credibly by the target group.” In other words, Christians can tough it out.
o The very same Tribunal member, Ms. Andreachuk, ruled three years later that a letter published in a newspaper using language such as “where homosexuality flourishes, all manner of wickedness abounds” and “know this, we will defeat you, then heal the damage you have caused” published in a newspaper by a Christian pastor was “more likely than not [to] expose members of the target group being homosexuals, to hatred or contempt” despite the fact that no harm was proved and the complainant himself was not even gay! [Lund v. Boissoin, 2007 AHRC 11].
– It is obvious that despite the most vigourous attempts to judge hate speech objectively, it never will be attainable; these types of problems will persist.
Alberta Human Rights Act
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, family status or sexual orientation 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.
(3) Subsection (1) does not apply to
(a) the display of a notice, sign, symbol, emblem or other representation displayed to identify facilities customarily used by one gender,
(b) the display or publication by or on behalf of an organization that
(i) is composed exclusively or primarily of persons having the same political or religious beliefs, ancestry or place of origin, and
(ii) is not operated for private profit,
of a statement, publication, notice, sign, symbol, emblem or other representation indicating a purpose or membership qualification of the organization, or
(c) the display or publication of a form of application or an advertisement that may be used, circulated or published pursuant to section 8(2),
if the statement, publication, notice, sign, symbol, emblem or other representation is not derogatory, offensive or otherwise improper.
RSA 2000 cH-14 s3;2009 c26 s4