The coverage continues… ]
I have read a few legal decisions since I started following the HRC and they are very seldom, if ever, that funny. However Mr. Justice E. C. Wilson obviously has a very active sense of humour, and complete and utter contempt for the Alberta HRT ruling. A few of the more interesting quotes follow.
Following bolds all mine.
Dealing with the matter of the “assaulted gay teenager” the Justice said.
 During final argument the Panel agreed with counsel for the Appellant that “no one gave evidence that in fact this individual was attacked because of their sexual orientation” (239/5-8).
 Unfortunately no one seemed to appreciate that there was no evidence of an assault at all, nor any evidence as to the accuracy of the news report of the alleged assault nor of the quotation attributed to the alleged victim. No evidence was provided of the details of the reporter’s interview, what questions were asked, nor how the subject of the Appellant’s letter to the editor arose during the interview. The reporter never testified nor did the alleged victim testify.
 No one seemed to appreciate that there was, perhaps, an even more significant problem in the evidence. Assuming there was an assault, there was no evidence to support the inference, let alone conclusion that the assaulter had previously read the letter to the editor or had been influenced by it to commit his crime.
 The significance of all these oversights cannot be overstated. For example, some counsel relied upon this hearsay as proven fact to support their arguments.
Unfortunately, in arriving at her decision, the Panel also mistakenly presumed that the newspaper report provided evidence of an assault and/or that the letter served as some sort of trigger for that assault. The Panel then utilized those erroneous presumptions to help draw conclusions of great legal significance in the case – that the letter violated s. 3(1)(b) of the Act and that the Panel had jurisdiction to adjudicate upon the complaint. These fundamental deficiencieswill be discussed in greater detail later in these reasons. pg 7
He interpreted Section 3 (The hate speech section) as only being applicable in relation to something like employment, lodging, etc.
Simply put (in the fact context of this case) s. 3(1)(b) is directed at eliminating statements which are hateful or contemptuous of a person or class of persons due to their sexual orientation, and which are also likely to cause others to engage in any of the discriminatory practices listed in the Act. pg 10
Speech that might lead to violence is none of the provinces business.
However, I disagree with any implication that the Province has jurisdiction to regulate hateful expressions that may lead to violence. That is a matter governed by the criminal law power reserved solely to Parliament. pg 10
Hate speech, apparently, is not really hate speech unless it actually influences someone to a hateful or discriminatory act or is likely to do so. In other words, it must be linked to actions.
As has been explained s. 3(1)(b) requires some causal link between publication of the message and the infringement of rights contained in the Act. pg 11
Thus the Panel only purported to apply Rooke J’s test in order to reach its decision and failed to go further and assess the likelihood that the letter’s contents would make it more acceptable for others to manifest hatred or contempt toward homosexuals by engaging in discriminatory activity prohibited by the Act. pg 12
…s. 3(1)(b) applies only to hateful expression that itself signals an intention to engage in discriminatory behaviour, or seeks to persuade another person to do so… pg 12
Intent must be considered (Wow).
Thus a panel’s examination of a complaint must include some consideration or assessment of a writer’s intent. Reasonable inferences in that regard may also be drawn notwithstanding a respondent’s claim of no discriminatory intent. pg 12
He cautions against overactive imaginations.
Speculation in the guise of reasonable inferences and overly enthusiastic interpretations or extrapolations of “cause and effect” must be avoided. Care must be taken not to simply move from a finding that the message is hateful or contemptuous to then presume that discriminatory practices are likely to ensue. pg 15
With regard to Boissoin’s letter.
But inferring some sort of call for discriminatory practices prohibited by provincial law is an unreasonable interpretation of the letter’s message. Again, and it bears repeating, absent some sort of connection or linkage between the impugned message and discriminatory practices the Act has no authority to restrain the message. pg 16
With regard to a fear that this letter could cause impressionable young people to act out.
Additionally, it is curious that the witness seemed to be of the view that young and impressionable youths who are at risk of acting out, are readers of newspapers and, in particular, of letters to the editor of newspapers. The source of this view was not explained and thus its reliability cannot be ascertained. pg 16-17
A strongly worded critique of the panel’s decision to deal with the complaint.
the Panel mistakenly found its jurisdiction to deal with the complaint by relying upon two erroneous conclusions. The first error was “the circumstantial connection” between the Appellant’s letter and the assault on the gay teenager in Red Deer.”…
With respect, the Panel got it somewhat backwards. The test for jurisdiction is not that the letter addressed issues of a “Local or Private Nature”? but whether the letter’s content runs afoul of s. 3(1)(b) of the Act.This fundamental error is fatal to the Panel’s decision. This mistake is in addition to the factual error concerning the “circumstantial connection” of the letter to an unproven assault. The significance of this error was previously discussed in these Reason and need not be repeated. pg 17-18
Letters to the editor are not expert testimony about the hateful nature of an article. Especially when they contradict each other. And who gave her permission to ignore and discount conservatives anyway?
With respect, there is no basis to settle the “reasonable person’s understanding” of the letter’s message simply upon reading subsequent letters to the editor. The Panel further erred in her inferential conclusion that these subsequent writers were persons of reasonable intelligence.They may very well have been but how the Panel came to her conclusion isn’t explained nor, in any event, is it clear that these writers, were in fact, “informed about the context”, which is a requirement of Rooke, J’s. reasonable person test. But even if she was correct in her conclusion,the Panel said nothing about the contradictory letters to the editor which were supportive of the Appellant. Why were all of those writers ignored? The danger in even partially relying upon anything akin to a public referendum when applying principles of law is obvious. pg 18
Boissoin’s letter was not hateful by the strict test of the law.
In my view the Panel erred in its finding that the impugned letter was hateful and contemptuous of homosexuals and the Panel further erred by failing to properly conduct the required s. 3(2) balancing act. pg 22
The Justice noted that we don’t censor Mein Kampf
In this regard, it is unfortunate that Crown Counsel, in the course of crossexamining the appellant’s sole expert witness, asked that witness if he could explain the difference between the letter and Adolf Hitler’s book Mein Kampf.” The damning innuendo is obvious. (On the other hand, if a parallel could be fairly drawn it should be noted that, far from being restrained, Mein Kampf is available at the Calgary Public Library.)
The Justice is well informed about the context of the debate it seems.
I also observe that the Panel made no reference to the observations of E.G.A.L.E. Canada who castigated the content but supported the publishing of the letter. 58 pg 22-23
Our good Judge seems to agree with Ezra Levant and co.
With respect,complaints about factual error or false reasoning by the author would seem to be properly met, at least at first instance, by counter speech correcting those failures – not by restraining the remarks.
With regard to the “militaristic tone” used, the Judge suggests a rather interesting explanation; metaphor.
By analogy, critics might reflect upon the language contained in the well-known hymn”Onward Christian Soldiers”. Surely no one can reasonably suggest that Christians singing the hymn at Sunday church service are being called upon to march into an actual war against non-Christians.
Obviously the Justice hasn’t met some New Atheists, but to continue.
Regarding the panel’s finding that this was not a political piece and that it was not part of an ongoing debate (there is no debate about homosexuality? seriously?)
All of these findings were based upon a significant misapprehension of the evidence.
Regarding the absence of pre-existing debate (and presuming that “political expression”can only be relied upon by an author who writes in response to earlier published commentary) I do not understand why the Panel restricted a consideration of “pre-existing debate” solely to previous letters to the editor of a particular newspaper. Such a narrow construct seriously skews the inquiry concerning the scope of public debate or discussion of public issues. But the factual error lies in the Panel’s oversight of the Affidavit with attached Exhibit of Joe McLaughlin,editor of the Red Deer Advocate which specifically documents the newspaper reports, columns and letters to the editor pre-existing the publishing of the Appellant’s letter. This material clearly indicates that there was an ongoing debate concerning the general topic in question…..
Had the Panel been alive to all this evidence, she could not have come to the conclusions that she did. Her erroneous conclusions stripped the Appellant of any credible, contextual basis to claim the letter manifested political or religious expression. pg 25
This next passage is priceless.
In the result I am satisfied that the individual and cumulative errors committed by the Panel permit of little deference to her various findings of fact and/or application of the law to those facts. Her errors of law led her to incorrect conclusions. The panel’s decision cannot stand. pg 25
The Justice calls the Panal on her bias and unfair handling of the case.
It is surprising the Panel held that she had no evidence before her having acknowledged that she had the Appellant’s sworn affidavit. There was no affidavit in response. Nor was the Appellant examined on his affidavit. Thus she had no contradictory evidence. All she had were contradictory submissions. pg 30
Justice Wilson calls them on their money grubbing tactics.
The Respondent’s third basis to seek the continued involvement of the C.C.C. as a respondent is of particular concern. Dr. Lund wished the C.C.C. to remain in order to ensure he had a greater opportunity to recover damages from the C.C.C. since Mr. Boissoin was impecunious. That is not, of course, a basis for joinder. The liability or responsibility of the C.C.C. is the required connection – not its financial situation. This is wholly apart from the fact that the Act would not grant Dr. Lund “damages” in any event. pg 30-31
The Justice works on the outmoded basis of innocent until proven guilty.
With respect, the Panel’s conclusion is mystifying. She relies on the absence of evidence from or on behalf of the C.C.C. to come to her conclusion without identifying any evidence that could support a conclusion that the C.C.C. contravened the Act. pg 31
I think despite his repeated use of the word “respect” our Justice has little respect for the Panel.
I find the Panel erred in law in determining the onus of proof and erred in law in fixing any sort of liability upon the C.C.C. I find the Panel misapprehended or ignored evidence on this issue before her, such that no deference to her findings is warranted. pg 32
With regard to the gag order, cease and desist order, apology, and $7000 fine.
The remedies imposed are set out at paragraph 14 of that decision. All are without legal foundation or beyond the authority granted by s. 32 of the Act for the following reasons: pg. 33
With regard to allegations that the complaint was pre-judged because of a decision by the Chief Commissioner.
Clearly the Chief Commissioner’s decision suggests findings that both the Appellant and the C.C.C. had violated the Act. Small wonder the Appellant complains of an appearance of bias on the part of the Panel inasmuch as she was appointed by the Chief Commissioner who had already given an opinion on the matter. The panel was clearly aware of the Chief Commissioner’s decision because she referenced it in her own judgment.
Unfortunately the Panel did not express a cleansing self instruction that she had disabused her mind of both the unfortunate words and apparent prejudgment expressed by the Chief Commissioner. In such circumstances this was mandatory self instruction I suggest.
 The Chief Commissioner’s language was problematic for another reason. It provided an early signal to the complainant to maintain his complaint and to take carriage of the proceeding. After all, the Chief Commissioner had essentially told him that his was a provable complaint. Fairness requires that no party perceives they are at an advantage or disadvantage over the other party based upon interlocutory communication from the adjudicative body.
 The Chief Commissioner should not have said what she did but having done so, the Panel was obliged to express the required self direction. pg 35
With respect to biased cross-questioning in which Boissoin was asked if he referred to the HRT as a kangaroo court and the Panel’s decision that this was a relevant question.
With respect, whether either or both individuals called the commission a “kangaroo court” was irrelevant to that or any other issue and was highly prejudicial to the Appellant’s interests at the hearing. If he said it, it might suggest to a reasonable bystander that the Appellant felt nothing but disdain for the Panel and the Panel’s work.
The fact that a reasonable bystander might conclude that Justice Wilson feels nothing but disdain for the Panel will not be mentioned here.
He makes a disclaimer but….
I hasten to add that in all those situations involving unfortunate language or intemperate cross-examination, I am not suggesting that the Panel was, in fact, prejudiced against the Appellant or had prejudged the complaint.pg 35-36
There is a good deal more in the “Reasons for Judgement” I encourage you to read it for yourself.
The judgment was not wholly one sided. It upheld the hate speech laws but argued for a very narrow definition of them. It also critiqued the letter pretty strongly although it decided that it was legal. The Justice also severely critiqued some of Boissoin’s less than orthodox legal opinions or allegations.
All things taken into consideration however, this ruling is decidedly much better for the free speechers than for the Tribunals.
Blazing Cat Fur has more. http://blazingcatfur.blogspot.com/2009/12/boissoin-wins-appeal-against-insane.html