The appellant challenged a finding on a statutory appeal that a letter to the editor did not constitute hate speech. The Court of Appeal dismissed the appeal, finding that the letter to the editor was on a matter of public interest and, even if offensive, did not constitute hate speech and was protected as expression of opinion.

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human Rights complaints – Sexual orientation – Charter of Rights and Freedoms – Freedom of expression – Judicial review – Compliance with legislation – Evidence – Standard of review – Correctness

Lund v. Boissoin, [2012] A.J. No. 1036, 2012 ABCA 300, Alberta Court of Appeal, October 17, 2012, C.M. Conrad, C.D. O’Brien and B.K. O’Ferrall JJ.A.

The appellant brought a complaint before the Alberta Human Rights and Citizenship Commission (the “Tribunal”) with respect to a letter to the editor written by the respondent and published in an Alberta newspaper wherein the respondent took issue with the “homosexual machine” that was responsible for educating children that homosexuality is morally acceptable. Approximately two weeks after the letter to the editor was published, a homosexual teenager was assaulted in the same community on the basis that he was gay. In an article reporting in the same newspaper on the assault, the victim referred specifically to the letter to the editor. This context provided the basis for the appellant, who was unrelated to the assault, to bring a complaint to the Tribunal that the letter to the editor exposed people to hatred and contempt and fostered an atmosphere of violence.

The complaint was originally dismissed by a regional office of the Tribunal. On appeal to the Chief Commissioner of the Tribunal, the complaint was allowed to advance to a panel hearing where the Tribunal held that the editor exposed homosexuals to hatred and contempt and violated section 3(1)(b) of the Human Rights, Multiculturalism and Citizenship Act, R.S.A. 2000, c. H 14 (the “Act”) and was not protected by section 3(2) of the Act, which protects free expression of opinion on any subject. The Tribunal ordered the respondent to cease publishing disparaging remarks about homosexuals in newspapers, by electronic mail, on the radio, in public speeches or on the Internet; ordered the respondent to write an apology; ordered an award of damages to the appellant in the amount of $5,000; and ordered expenses for up to $2,000 for one of the witnesses at the hearing.

The respondent appealed pursuant to the Act to the Court of Queen’s Bench. The lower court judge found that section 3(1)(b) of the Act only applies to hateful expression that signals an intention to engage in discriminatory behaviour or seeks to persuade another person to do so and that there must be a likelihood that the message might bring about a prohibited discriminatory practice. The judge found the letter and the evidence before the Tribunal about its potential effects did not sufficiently establish a link between the letter and other discriminatory practices under the Act. The judge held the remedies ordered by the Tribunal were without legal foundation and beyond the remedial powers under the Act.

On appeal to the Court of Appeal, the appellant challenged the judge’s interpretation of section 3(1)(b) of the Act. The appellant argued the judge erred in his interpretation of section 3(1)(b) and in finding that the letter did not constitute hate speech.

The Court of Appeal held that the interpretation and application of section 3 of the Act is a question of law of general importance to the legal system such that the correctness standard of review applies. The court held the judge erred in finding a need to prove a connection or link between the letter and subsequent discriminatory practice in order to restrain the message. However, the court agreed with the judge’s finding that the language in the letter did not go “so far as to fall within the prohibited status of ‘hate’ or ‘contempt’” under the Act. The court noted that language which is offensive and hurtful to others does not necessarily qualify as hateful or contemptuous speech.  It is essential to place the letter in context and to examine it as a whole, and not piecemeal. The court held that letters to the editor are an important means by which citizens express their opinions on matters of public interest, and that the newspaper decided to publish the letter supported a finding that the letter expressed an opinion on a matter of public interest. The court referred to the Supreme Court of Canada’s decision in WIC Radio Ltd. v. Simpson, 2008 SCC 40, which held that “[t]he public debate about the inclusion in schools of educational material on homosexuality clearly engages the public interest.”

Further, the Tribunal failed to properly consider the evidence of the managing editor of the newspaper that the newspaper published the letter because it decided it was honestly held expression of opinion on an issue of public debate and the purpose of its publication was to further public debate. The letter was distinguished in nature and quality from hate propaganda in other cases and, whether offensive or not, was part of an ongoing public debate on matters of public interest rather than hate propaganda which serves no useful function and has no redeeming qualities. A certain amount of public debate concerning such an issue must be permitted, even if some of it is offensive, to make the general public aware that such thinking is present in the community and to allow for its rebuttal. The court held that “[f]reedom of speech does not just protect polite speech” and that the respondent and others have the freedom to think and express their thoughts to others to the extent that it does not constitute a license to engage in discriminatory practices or to advocate them. The court, in agreeing with the judge’s conclusion that the letter did not breach section 3(1)(b) of the Act, held that it is not necessary to agree with the content of the letter to acknowledge the writer’s freedom to express their views.

Further, the Court held that the letter constituted an expression of opinion in the course of public discourse that is protected under section 3(2) of the Act. In this regard, the court reconciled the apparent conflict between the prohibition of any public statements likely to expose a person or class of persons to hatred or contempt (under section 3(1) of the Act) and the protection for all free expression of opinion on any subject (under section 3(2)). In interpreting section 3, the Court held that the prohibition under section 3(1) applies to all manner of public speech, whereas the protection under section 3(2) is directed solely at the free expression of “opinion.” Not all communication constitutes opinion and only the free expression of opinion is protected. The labeling of a message as opinion does not make it so, and whether a message is opinion is a question of fact to be determined by the trier of fact. Therefore, section 3(2) does not offer blanket protection to all expression.

The Court of Appeal dismissed the appeal, imploring the legislature to direct its attention to the lack of clarity under section 3 of the Act in the interests of providing citizens of the province with certainty to the exercise of their fundamental rights.

This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at jmorris@harpergrey.com or review his biography at http://www.harpergrey.com.

To stay current with the new case law and emerging legal issues in this area, subscribe here.