“Eternal vigilance is the price of liberty.”

- Wendell Phillips (1811-1884), American abolitionist, lawyer, orator and agitator.

As of October 1st, 2009, sexual orientation is now officially written in as a protected ground in the Alberta Human Rights Act. Since 1998 and the Delwin Vriend ruling, it has been “read in” as a protected ground, but now it is official.

With this freedom now secured, we have the duty to protect it from those who might see it chiselled away.

This past month saw an important appeal heard at the Court of Queen’s Bench in Calgary regarding the ongoing saga of Darren Lund versus Stephen Boissoin. As you may recall, In 2002 Boissoin – who at the time was the National Chairman of the Concerned Christian Coalition – had a letter published in the Red Deer Advocate claiming “homosexual rights activists and those who defend them are just as immoral as pedophiles, drug dealers, and pimps who plague our communities.”

Darren Lund, then a high school teacher in Red Deer, rightfully saw this as hate speech and filed a complaint with the Alberta Human Rights Commission. In 2008, the Commission ruled the letter violated the province’s human rights code (section 3), ordered Boissoin pay $5,000, told him to cease and desist in engaging in the behavior which brought him before the Commission, and finally, apologize to Lund, now a professor at the University of Calgary.

Boission’s appeal of that decision was heard on September 16 and 17; the appeal was argued with the decision being reserved (meaning a written decision will be issued later by the justice – probably sometime later this Autumn).

Part of this appeal was prompted by the broad ruling of the Commission. Mr. Boissoin, through his lawyer, claimed his right to free speech was taken away. Pat Nugent, the lawyer representing Darren Lund, agrees: “The Human Rights decision was – in our view – overly broad. The panel directed Boissoin and the Concerned Christian Coalition to cease and desist making any…what it called ‘disparaging remarks’ about homosexuals or about Mr. Lund or about any of the witnesses Mr. Lund called. Disparaging remarks is an extremely broad term and would capture many things which would fall short of the kind of speech that would expose a vulnerable group to hatred or contempt which is what the test is under the legislation.” This complicated the whole matter, and they agreed on this part with Mr. Boissoin and wanted the court to limit the order to be something more in line with the Human Rights statute.

However, even if that had been the ruling, Boissoin felt his freedom of speech was unjustifiably limited. The Boissoin position – and the position of two interveners (the Canadian Civil Liberties Association and the Canadian Constitution Foundation) - is that there should be no limits on hate speech except for those found in the Criminal Code of Canada.

Unfortunately, to find someone guilty of the crime of Hate speech is much tougher than being found to have offended section 3 of the Human Rights code. “They say there should be no human rights-related prohibitions on hate speech,” Mr. Nugent said.

The reason for this is that hate speech crime convictions are very difficult to obtain. According to Mr. Nugent, in the Criminal Code when it comes to hate speech, “there is a requirement for an intention to expose a group to hatred...that guilty mind component is always a tough one to establish in a hate speech prosecution.” It makes getting these convictions much harder. Mr. Nugent is opposed to that approach because the criminal law and the human rights law have two different objectives. Criminal law equals punishment, while human rights law equals remediation, compensation, and education. “It’s not meant to stigmatize and punish people who offend the human rights law – it’s meant to educate people, to let them know that these are the norms that society wants everyone to follow, and to compensate people who have been wronged as a result of their breaches. But not to punish – punishment is not one of the objectives of human rights legislation.” There are no fines to be assessed in a human rights breach, just minor damages payable to people harmed by wrongful speech/actions. Criminal law means you could go to jail, and any fines usually are payable to the state.

At first glance, going through the Criminal Code for a hate speech conviction would seem a harsher gamble for offenders like Boissoin. Stiff fines and jail time versus paying a modest amount and apologizing. However, as mentioned, getting a conviction in the Criminal Code is extremely rare – we know about the exceptions like Jim Keegstra and recently David Ahenakew who were charged and found guilty. Well, technically, only Keegstra was found guilty; David Ahenakew went through a second trial, and was acquitted. When you consider what Ahenekew said about Jewish people, on the surface it seems pretty clear what was stated was hateful towards a group of people. But with his conviction being overturned, it does empower certain people to think if they only had to worry about the Criminal code, they stand a pretty good chance of getting away with all sorts of hateful language, and thereby influencing others to think and sometimes to act in a similar manner.

Back to the Boissoin/Lund case, the court has been called upon to do a number of things. Boissoin’s position is that the decision of the panel should be quashed, and the court should substitute its own decision – either this is not hate speech under the human rights definition, OR if it was hate speech, this kind of speech should be federally regulated through the Criminal power (therefore the human rights legislation is unconstitutional) and the decision should be quashed; OR the third option is this ruling is an unjustifiable infringement on freedom of expression – under the Charter of Rights, the hate speech provision in the human rights legislation should be quashed and therefore that decision against Boissoin should be quashed.

Now, according to Mr. Nugent, the court could say the legislation is sound but the letter to the editor Boissoin sent didn’t constitute hate speech under human rights legislation. Or they could say this is hate speech, but there are constitutional problems with the legislation so therefore the panel didn’t have any legal basis to impose these remedies. Alternately, the court could rule it is hate speech, with the second half either being (a) the remedies the panel awarded were not appropriate or (b) these remedies were appropriate. For the reasons Mr. Nugent indicated at the start, he thinks the court will most likely consider just limiting the scope of the remedies.

Yet this whole case illustrates why, even with our newly awarded recognition in the Alberta Human Rights Act, we have to be on guard against those who feel the granting of our rights lessens theirs, or those who would use religion to justify their bigotry. With the Lund/Boissoin case as an illustration, the central argument of people who oppose hate speech regulations in Human Rights legislation is that the law has no business interfering with free speech. Yet the law interferes with free speech all the time – defamation is an example. “Somehow we have this notion that the protection of reputation is constitutionally untouchable but the prevention of discrimination is not,” Mr. Nugent told us. “The reality is, to be free from discrimination is a constitutional right, but the right to one’s reputation is not. It’s almost backwards. We should be more protective of efforts to prevent discrimination than we should of efforts to protect reputation.” This is something which is lost in the mainstream media – speech is limited all the time when it comes to protecting the individual. Yet somehow when it comes to slandering a minority, suddenly this becomes “thought police” and unjustifiable.

Whatever the outcome of the case, we can be proud of the advancements the GBLT community has made when it comes to our rights. Now the battle moves on toward protecting these rights from those who would see them reduced.

Eternal vigilance, indeed.