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The way forward

By Kevin Steel ⋅ December 12, 2007 ⋅  Email this post ⋅  Print this post ⋅ Post a comment

In considering the Alberta Human Rights panel’s [PDF] Lund/Boissoin decision, it just dawned on me that I’ve been looking at this thing the wrong way. I’ve been thinking of it as an individual rights thing, not a government-to-government power struggle. That decision’s revelation, written by panel chair Lori Andreachuk, is right near the end in paragraph 357:

"In balancing the freedom afforded under the Charter and the degree of protection afforded through the provincial legislation, I considered s. 2(b) of the Charter in regards to the fundamental freedoms of conscience and religion, the freedom of thought, belief, opinion and expression, including the freedom of the press and other media, the freedom of peaceful assembly and the freedom of association. Having considered the Charter and the balancing of the freedoms set out in the Charter, I have interpreted the Act in a manner which respected the broad protection granted to religious freedom. However, I have found that this protection does not trump the protection afforded under the Alberta human rights legislation in s. 3. to protection against hatred and contempt. I also take the view that s.3(2) required a balancing of these freedoms afforded to individuals under the Charter, with the prohibitions in s. 3(1) of the Act. In this case, the publication’s exposure of homosexuals to hatred and contempt trumps the freedom of speech afforded in the Charter. It cannot be the case that any speech wrapped in the ‘guise’ of politics or religion is beyond reproach by any legislation but the Criminal Code."

It’s right there in the middle. “;…I have found that this [Charter] protection does not trump the protection afforded under the Alberta human rights legislation in s. 3. to protection against hatred and contempt.” So the Alberta legislation trumps the Charter. No legislative debate, no notwithstanding clause, just BOOM! Good-bye Charter. (Funny, I thought the Vriend decision taught us it was the other way around. No matter.) Congratulations, Lori Andreachuk and the Alberta Human Rights and Citizenship Commission, you’ve just created the new Alberta Firewall.