Lund v Boissoin, 2012 ABCA 300 (17 October 2012) Summary
The Court of Appeal of Alberta distinguished between prohibited "hate speech" and speech that may be hurtful and offensive but which is protected by the freedom of expression in its recent decision of Lund v Boissoin, 2012 ABCA 300.
In 2002 subsection 3(1)(b) of the Human Rights, Multiculturalism and Citizenship Act provided that "no person shall publish … or cause to be published … any statement, publication … that is likely to expose a person or a class of persons to hatred or contempt" on the basis of listed grounds. While the listed grounds did not originally include a reference to sexual orientation, the Act was amended in 2009 to include sexual orientation as a prohibited ground of discrimination.
Subsection 3(2) of the Act relevantly protects freedom of expression by providing that "nothing in this section shall be deemed to interfere with the free expression of opinion on any subject".
Boissoin wrote a letter to the editor of the Red Deer Advocate (newspaper) which published the letter on 17 June 2002. The letter included statements such as "[w]here homosexuality flourishes, all manner of wickedness abounds" and "[h]omosexual rights activists and those that defend them, are just as immoral as the pedophiles, drug dealers and pimps that plague our communities".
On 18 July 2002 Lund, the applicant, filed a complaint against the respondents, Boissoin and the Concerned Christian Coalition, with the Alberta Human Rights and Citizenship Commission, alleging that the letter constituted discrimination on the basis of sexual orientation, it exposed people to hatred and contempt, and it fostered an atmosphere of violence. The Commission referred the case to the Human Rights Panel which found that the letter exposed homosexuals to hatred or contempt. The Panel's decision was subsequently appealed and overturned in 2009 by Justice Wilson's decision in the Court of Queen's Bench of Alberta.
Justice Wilson held that the letter was “jarring, offensive, bewildering, puerile, nonsensical, and insulting”, but that its language did not go “so far as to fall within the prohibited status of ‘hate’ or ‘contempt’” (Boissoin v Lund, 2009 ABQB 592 at ). In reaching this conclusion his Honour interpreted subsection 3(1)(b) of the Act as requiring a “causal link between publication of the message and the infringement of rights contained in the Act” in addition to “concrete evidence” linking the message to the prohibited practices listed in section 3. His Honour concluded that the letter and the evidence of its potential effects were insufficient to establish the required linkage.
Lund challenged all aspects of Justice Wilson’s decision.
The issues on appeal were whether the letter violated subsection 3(1) of the Act, and whether the subsection 3(2) exemption to subsection 3(1) applied.
The Court of Appeal unanimously dismissed Lund's appeal. Justice O'Brien delivered judgment with Justices Conrad and O'Ferrall concurring. Justice O'Brien found that while the letter was "offensive … coarse, crude and insensitive … [it] constituted an expression of opinion that did not infringe the statute – [it did] not meet the threshold of hate speech". Hence, the letter did not breach subsection 3(1)(b) of the Act (at ), and nonetheless, the subsection 3(2) exemption applied.
His Honour found that the implied linkages referred to by Justice Wilson were unsupported by the language of the Act on a plain and ordinary reading. Rather, the Act required only a demonstration that the publication is likely to expose a person or a class of persons to hatred or contempt, "no evidence of a subsequent discriminatory activity caused by such exposure is required to make the prohibition effective".
Justice O'Brien held that “hatred and contempt” were to be interpreted in accordance with the previous Supreme Court decision Canada (Human Rights Commission) v Taylor  3 SCR 892 and the Canadian Charter of Rights and Freedoms values, and that the bar was to be "set high because a free and democratic society places a premium on the free expression of opinion and the free exchange of ideas". As such, the fundamental freedom could only be derogated from if the speech was of an "ardent and extreme nature" rather than merely "offensive and hurtful".
His Honour found that "it is essential to place the letter in context", a consideration which the Human Rights Panel overlooked. Evidence indicated that the newspaper decided to publish the letter because it expressed an opinion of a citizen on a matter of public interest. His Honour referred to an earlier decision of the Supreme Court in which it was held that “[t]he public debate about the inclusion in schools of educational material on homosexuality clearly engages the public interest” (WIC Radio Ltd v Simpson, 2008 SCC 40, at ). Hence, the purpose of the publication was to further public debate. In relation to what constitutes public debate his Honour held at that
[w]hether offensive or not, the letter was perceived to stimulate and add to an ongoing public debate on matters of public interest, as distinct from 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 type of thinking is present in the community and to allow for its rebuttal.
The letter was held to be an expression of Boissoin’s opinion that teaching children at school that homosexuality is normal, and that same sex families are equivalent to heterosexual families, is morally wrong and should not be tolerated. The aim of the letter was to stir apathetic people, who agreed with Boissoin, to his cause. Justice O'Brien concluded that a reasonable person, aware of the context of the letter, would understand that its subjects were sexual behaviour and morality, and education about these subjects in public schools funded by taxpayers. The letter did not elicit emotions of "detestation, calumny, or vilification against homosexuals or expose homosexuals to hatred or contempt".
Justice O'Brien made some important obiter comments about the freedom of speech at :
[m]atters of morality, including the perceived morality of certain types of sexual behaviour, are topics for discussion in the public forum … freedom of speech does not just protect polite speech. Further … some latitude should be given to those who do not have the educational advantage of being able to communicate their message in more sophisticated language.
In relation to the letter being a protected expression under the Act, his Honour found that subsection 3(2) was confined to expression of opinion, as distinct from directives and calls to action of discriminatory conduct. The letter fell into the former category as a matter of fact.
This case demonstrates the primacy given to freedom of expression and judicial hesitancy to encroach on this fundamental right. There appears to be a fine line between hateful and contemptuous statements and statements of the impugned nature. This line can be difficult to draw and tends to attribute a certain level of literary sophistication to the reasonable recipient of such a message allowing them to identify the nuances between both types of statements.
As previously reported, freedom of expression is protected under section 15 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). Notably, subsection 15(3) further provides that special duties and responsibilities are attached to the right, and that the right may be subject to lawful restrictions reasonably necessary to, inter alia, respect the rights and reputations of other persons and for the protection of public morality. While Australian courts may refer to Canadian case law for guidance when interpreting section 15, subsection 15(3) also expressly requires an Australian court to consider the impact of impugned statements on the subjects of the statements and the community.
This decision is available online at: http://canlii.ca/en/ab/abca/doc/2012/2012abca300/2012abca300.html
Laura Myer, Law Graduate, Allens.