Regulation of Expression takes a New Twist at the Alberta Human Rights and Citizenship Commission

An earlier post referred to a recent case in British Columbia and argued that the functionaries who staff the country's human rights commissions have no competence to determine the constitutional limits of expression.

The problem is not, of course, confined to British Columbia.  The Alberta case involving Ezra Levant is notorious, and now comes the Boisson case - in which the Alberta Human Rights and Citizenship Commission ordered a youth pastor in Red Deer to write an apology abjuring (I presume untruthfully) his views on homosexuality and has also ordered him to refrain from making "disparaging" remarks about homosexuals.  (It has been observed that for him to give a sermon in his church citing the biblical injunction against homosexuality probably violates the Commission's order).

Lest I be misunderstood (or hauled before the Commission), I should probably state up-front that I do not accept the biblical injunction against homosexuality as authoritative or otherwise normatively valid.  Nor do I believe that homosexuality is a "sin" or otherwise wrong.  And I am nauseated by clerics who rail against homosexuality, and often wonder why the marketplace of ideas hasn't left them confined to inner city street corners yelling maniacally about the apocalypse and selling matchbooks for a penny.  Such people are a much easier target for the Commission than Levant, to say nothing of Macleans.  Still, the objection remains:  the apparatchiki at the Commission are hardly fit to judge the legitimate limits to be imposed upon expression, even expression which the vast majority of our fellow citizens might find objectionable.

What is astonishing about the Commission's order is that it goes beyond what is, in my view, the already illegitimate regulation of expression by functionaries.  This man is being ordered to actually engage in expression:  specifically, to recant and, by abjuring his own views on homosexuality, to say something which is presumably contrary to the dictates of his own conscience. 

It's no small step to move from ordering thou shalt not say to ordering thou shalt say.  Let's hope a real court gets ahold of this. 

Comments

[BKN]

I agree that this order is problematic. I'm reminded of this passage from Locke's "Letter Concerning Toleration": "The care of souls cannot belong to the civil magistrate because his power consists solely in outward force; but true and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God." That said, however, two questions:

1. I know very little about employment law, but don't judges, or at least labour arbitrators, have the power to order employers to write reference letters for wrongfully dismissed employees?

3. How is this remedy categorically different from, and more objectionable than, laws banning a businessperson from refusing to serve someone on the grounds of their race or religion? When I was in high school c. 1980 [sic] my social studies [sic] teacher invited to class some apparatchik from the provincial human rights commission to speak about the human rights code and related issues. We all were shocked and outraged (and the bureaucrat dismayed and depressed by our outrage) that, for example, a hotelkeeper could not post a swastika on the wall behind the front counter, or refuse to serve members of race X, were s/he so inclined.

[BKN]

Don't know what happened with the numbering of my points in the previous post. I wasn't trying to inject British list-play humour, e.g.

1. Torture
2. Obtain a signed confession.
3. Nothing. There is no third thing. (Python)

A. Hello.
C. What happened to B?
B. Oh, there it is. (Spitting Image)

[Russ Brown]

Interesting point about reference letters. I do know (per Guardian Assurance) that employers have an obligation to refrain from making inaccurate references, but I do not know if the law has gone so far as to require them to give references (Prof. Adams, over to you?). That said, such a communication would presumably not relate to matters of conscience and as such is of a different quality than the Boisson order.

The other examples you give (putting up swastikas in stores, refusing to serve, etc.) refer to "thou shalt nots" rather than "thou shalts" (although I'll concede that the refusal to serve problem makes the distinction a bit fuzzy). I once read an interesting paper by Peter Benson, "Equality of Opportunity and Private Law" in D. Barak-Erez & D. Friedmann, eds., Human Rights in Private Law (Hart Publishers, 2002) 201, which argues that the refusal-to-serve prohibition can be justified as an extension of the common calling cases, which would probably mean tht we can distinguish between shopkeepers (you hang your shingle, you take what walks through the door) and clergy (which presupposes a world of "ins"/"us" and "outs"/"them").

In any case, what I see in this case that makes it different/more odious is that it imposes (1) what can only be seen as a "thou shalt" order (I added "only" so I can fudge it a bit on your shopkeeper example) (2) in respect of a matter of conscience.

[Eric Adams]

Indeed, there is a Supreme Court ruling directly on point. In Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 , the Court ruled that an adjudicator's award (under the Canada Labour Code) forcing an employer to write a reference letter on behalf of a wrongfully terminated employee infringed section 2(b) of the Charter -- freedom of thought, belief, opinion and expression -- but was saved as a reasonable limit under section 1.

[Russ Brown]

Thanks, Eric.

It's all speculation, of course (but isn't that what lawyers do - try to predict results?) - but do you think the SCC would come to the same decision now?

Russ

[BKN]

"The other examples you give (putting up swastikas in stores, refusing to serve, etc.) refer to "thou shalt nots" rather than "thou shalts" (although I'll concede that the refusal to serve problem makes the distinction a bit fuzzy)."

What would be an appropriate remedy for breaking a "thou shalt not"? Would it be appropriate to, say, compel the shopkeeper to take out an ad in the paper saying, "We welcome customers of all races, especially race X"?

"we can distinguish between shopkeepers (you hang your shingle, you take what walks through the door) and clergy"

Some might say that in this age of church-shopping and -switching, there's not that much difference.

[Eric Adams]

Certainly, recent jurisprudence (I am thinking, in particular, of Dunsmuir v. New Brunswick, 2008 SCC 9, and Evans v. Teamsters Local Union No. 31, 2008 SCC 20) suggests a Court less inclined to treat the employment context with the distinctiveness and attention to power imbalance of, say, Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701.

Still, I think Slaight rests on relatively safe constitutional footing. For one thing, the provision of reference letters is a standard component of many settlements involving employment law claims. Secondly, the Court is Slaight upholds a reference letter attesting to various "facts" and not expressions of opinion. These are blurry lines to be sure, but, again, the question becomes one of "reasonable limits" under section 1. Is it unreasonable to order an employer to provide a wrongfully terminated employee with a letter indicating, for example, her job title and duration of employment for the purposes of mitigating damages and securing alternate employment? I suspect most courts will continue to find, as per Slaight, that such practices constitute a reasonable limit of the Charter right to free speech.

[Gareth Morley]

No one really likes to admit it, but there is no way to have anti-discrimination laws without violating freedom of speech and freedom of expression. What stops a Human Rights Tribunal from deciding that being male is not a "bona fide occupational requirement" for performing mass? The discretion inherent in the tests human rights law uses. Common sense. Political reality. But these also probably mean that Steyn and Maclean's are safe. It is the unpopular and unconnected who have to worry.

Put it another way. if Duplessis were alive today, why couldn't he have Roncarelli's licence for promoting hatred against Catholics?

[Gareth Morley]

Eric,

How useful would a tombstone reference, obviously pursuant to court order, stating job title and duration of employment be in "mitigating damages"? You'd think you'd have trouble getting a job in Fort McMurray with something like that. Better to say you spent the time in jail for embezzlement.

[Eric Adams]

Gareth:

A pulse will get you work in Fort Mac, the tombstone reference letter would be gravy.

Incidentally, you'd be amazed how popular perfunctory reference letters are to recently terminated employees, if only because some employers are so adamant about refusing them.

[BKN]

"Put it another way. if Duplessis were alive today, why couldn't he have Roncarelli's licence for promoting hatred against Catholics?"

Or for that matter, why couldn't the publications at issue in Saumur
http://www.canlii.org/en/ca/scc/doc/1953/1953canlii3/1953canlii3.html
attract a human rights complaint from Catholics, or even a Criminal Code "promotion of hatred" prosecution?

[rabbit]

To quote Greg Lukianoff, writing in The Huffington Post this Wednesday:

"As bad as it is to tell people what they can't say, it is even worse to tell them what they must say, and worse still what they must think or believe."

[Jonathan]

The most appalling aspect of the ruling, going beyond the mere order to say something, is the order to apologize.

As if the state has the right to force Boisson to change his beliefs. An apology, essentially, is admitting you have done wrong. How can the state, in any liberal democracy, impose its views of right and wrong on a person and force that person to adopt it.

At its very core, a state becomes "totalitarian" if one is forced to publicly recant its private thoughts and opinions. The spirit of the old Act of Uniformity lives on in Canada, I suppose.

Perhaps this case could produce some interesting jurisprudence on the "reasonable limits" to the right of freedom of belief (as opposed to merely freedom of expression).

[Grant]

Lawyers used to be the last protectors of individual freedom against the encroachment of the State. But in the past 40 years, there has been a revolution in the theory and practice of law. Lawyers at some point seem to have figured out that the more laws there are to regulate every aspect of human existence, the more well-paid work there is for lawyers to do. Law Faculties have become the breeding ground of little fascists, like the ones persecuting Mclean's, and the ones shutting down anti-abortion groups on campus -- who grow up to staff Human Rights Commissions. It is long past time the Deans of Canada's Law Faculties woke up and took notice.

[Neil Goodridge]

Grant, I think you're exaggerating - a lot. From my conversations with my first-year compatriots (and the upper-years students I knew), I would say that law students are more libertarian than the average population. Slightly less freedom-crazy than computer science students (who, admittedly, are weird), but definitely not fascists.

Gareth: I didn't have much difficulty finding a job with the dates/job title reference I got from Convergys - and it was arguably harder to find jobs in Winnipeg than it is in Fort Mac. I'm not sure just how much difference it really makes to employers.

[Simon Fleischmann]

The "Andreachuk upchuck" ruling in Alberta effectively makes the Christian theological perspective on homosexuality - a theological perspective which is shared by virtually all Christian denominations but emphasized more by some than by others - ILLEGAL in Alberta.

From this point onwards, therefore, no Catholic or Anglican priest, Protestant minister/pastor of any denomination, or Jewish rabbi can address the issue of homosexuality in their places of worship without risking being found "guilty" of hatespeech.

By contrast, imams can continue to advise their flocks that gays should be tossed into the sea, off mountains, or otherwise disposed of permanently by any means at hand. Amsterdam - the world's most gay-positive city - has now become the city in which gays are most likely to be assaulted by Islamist sand savages busy pursuing their 7th century social agenda.

Bottom line - ISLAM as it seems to be evolving around the globe is NOT JUST A RELIGION, unlike Catholicism, Judaism, Hiduism, etcetera. ISLAM COMES REPLETE WITH A "SOCIAL JUSTICE" AND POLITICAL AGENDA which contradicts millennia of western civilizational development. Mosques and Islamic organizations should not be accorded the special tax status of other religious organizations and places of worship UNLESS POLITICAL AND SOCIAL ISLAAMIST GOALS ARE NEVER ADDRESSED BY IMAMS OR OTHER ALLEGED MUSLIM COMMUNITY "LEADERS". This would be no less extreme than what the Alberta HRC has effectively decided about Christian theology.

What's good for the gioose, as they say...

[Gareth Morley]

Simon,

If you think Christianity has never come with a "social justice" or political agenda, you should be made aware of Leo X, Martin Luther King and/or Tommy Douglas.

Stylistically, arguments in "all caps" are rarely persuasive. They make you sound like a lunatic.