Ultra Vires – Not Just a Normal Virus
[ ED NOTE: Mbrandon8026 from Freedom Through Truth was kind enough to allow me to cross-post this article from his blog. You can read the original here. You can read the two previous installments here and here. ]
Here’s another reason for staying away from the Alberta HRC, and any HRC for that matter. They seem to suffer in the words of Mr. Gerald Chipeur Queen’s Counsel (his QC seems to mean something unlike Jennifer Lynch Queen of Censors, and Lori Andreachuk baby Queen of Censors) from the ultra vires.
Now, I am not really a dope, just a guy with a weird sense of humour, so I do know that ultra viresreally means in Latin “beyond the powers”, and if that does not say it all for our CASHRA members, I do not know what does. So, in my lexicon they all suffer from the ultra vires.
But here’s what it means to Mr. Chipeur in defending Stephen Boissoin, and for the remedies decreed by Comrade Andreachuk and her Panel in 2007. He thinks our Comrade is one sick puppy with the ultra vires, that is.
Here is the summary of the answer on an ordered remedy by remedy basis to the question before the Court “Are the remedies in the Decision authorized in the HRCM Act and are they consistent with the Constitution?”:
(i) the order prohibiting the publication of “disparaging remarks” about “gays and homosexuals” is ultra vires the HRCM Act and inconsistent with Section 2 of the Charter;
(ii) the order prohibiting the publication of “disparaging remarks” about “Dr. Lund or Dr. Lund’s witnesses” is ultra vires the HRCM Act and inconsistent with Section 2 of the Charter;
(iii) the order requiring the removal of “disparaging remarks” from “current websites and publications” is ultra vires the HRCM Act and inconsistent with Section 2 of the Charter;
(iv) the order restraining future contraventions of the HRCM Act is ultra vires the HRCM Act and inconsistent with Section 2 of the Charter;
(v) the order requiring an apology for writing the Letter is ultra vires the HRCM Act and inconsistent with Section 2 and 12 of the Charter;
(vi) the order requiring publication Decision of the Panel with respect to remedy and the written apology of Stephen Boissoin in the Red Deer Advocate are ultra vires the HRCM Act and inconsistent with Section 2 and 12 of the Charter;
(vii) the orders awarding damages and expense reimbursements to Dr. Lund and Ms. Dodd, respectively, are ultra vires the HRCM Act.
This is a fricking epidemic of the ultra vires folks. We better warn Health Canada, and get inoculated against this stuff, or in the words of Ezra Levant, we should “Fire. Them. All.”
Anyway, before I get carried away, that was just the brief summary, probably the part that is called brief in the Brief. However, the evisceration continues a little later in the Brief. Oh, you can still download the entire document here at Stephen’s website, and donate to his cause here on his site.
OK, the remedies have no basis in law. Mr. Chipeur makes a compelling case with his opening paragraph in the section:
“Before considering the defects in the Decision under the HRCM Act and the Constitution, it is instructful to consider the remedies granted by the Panel. This is because the nature of the remedies granted illustrate why the Decision must be found to be inconsistent with the HRCM Act and the Constitution. The remedies demonstrate beyond doubt that Section 3(1) of the HRCM Act does not belong in the laws of a free and democratic society. Given the opportunity to apply this section to a public policy debate, the Panel, an agency of the Government of Alberta, issued an order of censorship unparalleled in Canadian jurisprudence.”
Then he launches into dissecting each remedy in detail.
He starts logically with the first two remedies prohibiting publishing of “disparaging remarks”. Most morons could have picked up on this one, and I don’t mean Mr. Chipeur. He rightly comments that “disparaging” is not a synonym for “hate and contempt” which the legislation protects against, and in fact is broader in definition. In other words, but not Mr. Chipeur’s what the heck did Lori Andreachuk mean and how would you ever enforce it, even if it were legal?
Now as to the writing of an apology and publication thereof, Mr. Chipeur writes eloquently once again. Here are his own words:
There is no authorization in Section 32 , or in any other section of the HRCM Actto order an apology. An apology in an expression of a feeling, such as regret, remorse or sorrow. By definition, then, an apology cannot be ordered without also ordering the underlying emotion. In effect, the Panel has ordered that the Appellant, Stephen Boissoin change his mind. In a very real way, the Panel has assumed the role of thought police. The legislature did not authorize or empower the Panel to act in this manner. Where a statutory delegate exercise remedial powers, the remedies issued must be specifically authorized by statute.
Wow!!! Mr. Chipeur then quotes 3 particular authorities in support of his statement. There’s the other TP word, out in the open. I bolded it so you wouldn’t miss it.
Next Mr. Chipeur deals with the payment ordered to Dr. Lund. As he says: “There is no authority within the HRCM Act to order the payment of a bounty to an individual who brings another private citizen to justice”, only someone who has been dealt with contrary to the act, ie. an aggrieved party. Dr. Lund claims not to be a homosexual, so it has always confused me that he never had a dog in the fight, but got to start the fight. Who did he think he was anyway, Michael Vick? He takes the same stand as to Ms. Dodd, calling her a stranger to the Complaint, meaning she was not named in it.
Last but certainly not least, for the remedies section of the Brief, Mr. Chipeur deals with the constitutional errors he uncovers there. He cites violation of Stephen Boissoin’s Charter rights under Sections 2(a) and 2(b) and 12, and of course gives case authorities for so citing.
It has struck me as somewhat strange that the human rights legislation from province to province is not always consistent, and does not seem to be consistent with the Charter. I did discover that Ontario’s legislation actually predates the Canadian Charter of Rights and Freedoms.
So, the bottom line of all this, is that the Panel was way off the reservation in the Boissoin case, and Mr. Chipeur hopes to rein them in. Don’t we all?