On October 17, 2012, the Court of Appeal of Alberta ruled in favour of Pastor Stephen Boissoin, upholding his freedom to write a letter to the Editor of his local newspaper addressing subject of Alberta government education policy on the subject of sexual orientation and the school curriculum. A human rights tribunal appointed under the Alberta Human Rights Act (“Alberta Act”) had originally found the Pastor’s letter to be in violation of section 3 of the Alberta Act, having determined that the letter was “likely to expose a person or a class of persons to hatred.”

Based upon the high standard of respect for freedom of expression preserved in section 3 of the Alberta Act, Justice Earl Wilson of the Court of Queen’s Bench of Alberta found that the letter written by Pastor Boissoin was not in violation of the Alberta Act. Justice Wilson was of the opinion that the letter was not likely to expose a person or class of persons to hatred.

The decision of Justice Wilson was appealed to the Court of Appeal of Alberta by Dr. Darren Lund. It is noteworthy that the original prosecution and the appeal to the Court of Appeal were taken by University of Calgary Professor Dr. Darren Lund. Dr. Lund chose to proceed with the Action against Pastor Boissoin after the Alberta Human Rights Commission refused to proceed with a case against Pastor Boissoin. The Alberta Act includes a provision that allows a private party to proceed with a prosecution, even where the Commission has decided not to enforce the Alberta Act in a particular instance.

In addition to the parties (Dr. Lund and Pastor Boissoin), the Court of Appeal also heard from two interveners. The Canadian Civil Liberties Association intervened in support of the principles of free speech and against section 3 of the Alberta Act. The Attorney General of Alberta intervened to support the Alberta Act and section 3, in particular. The Court of Appeal did not expressly throw out section 3 of the Alberta Act. However, its reasons for decision have effectively neutered section 3. This is what the Court of Appeal said:

[94] The objective of statutory interpretation is to discern the legislative intent from the language of the legislation, if possible, and to give effect to such intent. This objective becomes difficult to attain when there is conflict, imprecision, or a lack of clarity in the legislation. Of particular concern in the area of human rights law is that a lack of clarity will cast a chill on the exercise of the fundamental freedoms, such as freedom of expression and religion.

. . .

[99] In my view, the citizens of this Province are entitled to certainty when it comes to exercise of their fundamental rights. It is ironic that the O’Neill Report, which inspired the 1996 amendments, recommended that “the Act be rewritten in plain language”. In my view, it would serve the interests of the citizens of this Province if the Legislature would direct its attention to this objective.”

The Court of Appeal did not need to address the constitutionality of the Alberta Act, so the words above are purely obiter.

The reason the Court of Appeal did not need to address the constitutional question was the Court’s conclusion that the Pastor’s letter did not fall within the terms of section 3 of the Alberta Act:

“[77] … It is not necessary to agree with the content of the letter to acknowledge the writer’s freedom to express his views. Thus, I agree with the reviewing judge’s conclusion that the letter does not breach subsection 3(1)(b) of the statute.

[78] In my view, the letter also constitutes an expression of opinion in the course of public discourse within the meaning of subsection 3(2) of the Act, which exempts it from the application of subsection 3(1)(b). This is a further ground for upholding the conclusion reached by the reviewing judge.

[87] Having regard then to the sweep of subsection 3(1), and the narrow, if any, application of subsection 3(3), it seems likely that in retaining subsection 3(2) the legislators were seeking, firstly, to ensure that in matters coming within provincial legislative authority Alberta citizens enjoyed the freedoms of speech and religion recognized in the Alberta Bills of Rights, RSA 2000, c A-14. Secondly the legislators were attempting to tailor the section to ensure it was within their provincial jurisdiction. It is pertinent, in this regard, to consider Duff C.J.’s remarks in Reference re Alberta Statutes at 134:

Any attempt to abrogate this right of public debate or to suppress the traditional forms of the exercise of the right (in public meeting and through the press) would, in our opinion, be incompetent to the legislature of the provinces, or to the legislature of any one of the provinces, as repugnant to the provisions of The British North America Act, by which the Parliament of Canada is established as the legislative organ of the people of Canada under the Crown, and Dominion legislation enacted pursuant to the legislative authority given by those provisions. The subject matter of such legislation could not be described as a provincial matter purely; as in substance exclusively a matter of property and civil rights within the province, or a matter private or local within the province.

[88] More recently, McLachlin C.J. and Major J. articulated similar sentiments in Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827, at para 12:

The right of the people to discuss and debate ideas forms the very foundation of democracy... For this reason, the Supreme Court of Canada has assiduously protected the right of each citizen to participate in political debate.

. . .

[93] Accordingly, in my view, if the public statement properly qualifies as an expression of opinion, and is not something more than that, or something of a different character, then pursuant to subsection 3(2) the statement of opinion is exempt from the prohibition set forth in subsection 3(1). In this case, I have already found that Boissoin’s letter, seen in context, was an opinion on a subject of public debate – teaching in schools concerning homosexuality. It was, therefore, protected speech under this section of the Act.”

The Court of Appeal also ordered costs in favour of Pastor Boissoin.

It is worth noting, in conclusion, that the House of Commons recently voted to repeal section 13 of the Canadian Human Rights Act, the federal equivalent of section 3 of the Alberta Act (the bill is currently awaiting a vote in the Senate). Furthermore, the Supreme Court of Canada issued a decision on February 27, 2013 striking down a part of section 14 of the Saskatchewan Human Rights Code, s.s 1979, c. S-24.1, the legislative equivalent of section 3 of the Alberta Act. See Saskatchewan Human Rights Commission v. Whatcott, 2013 SCC 11. A review of that decision is found at page ___ of this edition.