Boissoin v. Lund, 2009 ABQB 592

IN THE MATTER OF THE ALBERTA HUMAN RIGHTS, CITIZENSHIP AND MULTICULTURALISM ACT, R.S.A. 2000, c.H-14 AND IN THE MATTER OF A DECISION OF A PANEL OF THE ALBERTA HUMAN RIGHTS AND CITIZENSHIP COMMISSION IN REGARDS TO COMPLAINT NO.

S.2002/08-0137

Between:

Stephen Boissoin and the Concerned Christian Coalition Inc.

Appellants

- and -

Darren Lund

Respondent

- and -

The Attorney General of Alberta, Canadian Civil Liberties Association and Canadian

Constitution Foundation

Interveners

_______________________________________________________

Reasons for Judgment

of the

Honourable Mr. Justice E.C. Wilson

_______________________________________________________

Page: 2

To be clear, “sexual orientation” was not l 1 anguage found in this legislation. It was, however, added to the list of prohibited grounds of discrimination as a result of the decision in Vriend v. Alberta [1998] 1 S.C.R. 493. (It has been subsequently legislated into place by Alberta in 2009). 

Introduction

[1] This is a judicial review of a decision of an Alberta Human Rights Panel [the Panel] which found that the Appellant and The Concerned Christian Coalition Inc., an organization

related to the Appellant had, in a letter to the editor of a newspaper published June 17, 2002, expressed comments likely to expose homosexuals to hatred and/or contempt due to their sexual orientation. [2] The comments were found by the Panel to have violated s. 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act [the Act] which, in its pertinent terms, reads as follows: 

“No person shall publish ... or cause to be published ... before the public any statement ... that ... is likely to expose a person or a class of persons to hatred or contempt because of the ... sexual orientation ... of that person or class of persons.”1

[3] The Appellant advances a number of complaints which argue (i) that the legislation is ultra vires; (ii) that the legislation violates s. 2(a) & (b) of the Charter of Rights and cannot be saved by s. 1 of the Charter; (iii) that the letter’s contents were not hateful or contemptuous of homosexuals and, in any event, were protected speech under the Charter and (iv) that the remedies imposed were unlawful or unconstitutional. The Appellant also submits that the process leading up to the Panel’s decision was flawed and that the Panel was wrong to have found that the Concerned Christian Coalition Inc. had also violated the Act.

[4] I permitted the intervention of several parties. Additionally, the Attorney General of Alberta appeared due to the constitutional challenges raised by the Appellant. The Attorney General of Canada declined to intervene. 

[5] The Intervener Canadian Constitution Federation supported the Appellant’s claim that the impugned legislation was ultra vires the Province. The Intervener Canadian Civil Liberties Association supported the Appellant’s claim that the impugned legislation violated s. 2(a) & (b) of the Charter and could not be saved by s. 1.

[6] Alberta’s position was that the legislation was intra vires the Province and that, while the legislation did violate s. 2(b) of the Charter, it was saved by s. 1.Page: 3 2[2008] A.J. No. 830 (C.A.).

[7] The Respondent’s initial position disagreed with all of the Appellant’s claims. However, during argument, counsel conceded some legal deficiencies in the remedies granted by the panel.

[8] In the reasons that follow I conclude that the legislation is intra vires the Province and does not violate the Charter. I also find that the contents of the letter to the editor do not violate s. 3(1)(b) of the Act. I further conclude that the remedies imposed by the Panel were either unlawful or unconstitutional. Finally, I will provide my observations regarding various troubling aspects of the process leading to the decision of the Panel, including my finding that the Panel was wrong in holding that the Concerned Christian Coalition Inc., was properly before it; alternatively, wrong in holding that that organization had violated the Act.

The Appeal from the Panel’s Decision

[9] The pertinent provisions of the Act are as follows: 37(1) A party to a proceeding before a human rights panel may appeal an order of the panel to the Court of Queen’s Bench by originating notice filed with the clerk of the Court of the judicial district in which the proceedings was held. . . .

     (4) The Court may (a) confirm, reverse or vary the order of the human rights panel and make any order that the panel may make under section 32, or (b) remit the matter back to the panel with directions. 

Remedies are detailed in s. 32 of the Act.

[10] The Act makes no reference as to the grounds upon which an appeal may be brought. However, it is clear that the nature of the appeal is what is described as a judicial review.

Standard of Review

[11] This issue has been decided in Walsh v. Mobil Oil Canada:2 55 In our view, in light of Albert’s human rights legislation, the existing case law answers the question of standard of review, at least in a general sense. It indicates that human rights tribunals, such as the panel in this case, may be afforded some deference with respect to findings of fact and credibility, given their role in hearing viva voce evidence. However, reviewing courts will be unconstrained in Elgie v. Alberta (Workers’ Compensation, Appeals Commission), 2009 ABCA 277, para’s 32, 34.

4Administrative Procedures and Jurisdiction Act, R.S.A. 2000, c.A-3; Designation of

Constitutional Decision Makers Regulation, Alta. Reg. 69/2006.

their assessment of the evidence as it relates to the applicable law, particularly

where an error is found in respect of the tribunal’s articulation of the law.

[12] On questions of law, the appropriate standard of review is correctness.3 It should be noted

that the claim that the legislation violates the Charter of Rights was raised for the first time

before me. This is because Alberta legislation forbids a panel from making such a determination.4

Evidence

A. The Letter

[13] The Appellant admittedly wrote the letter to the editor of the Red Deer Advocate which is

the largest daily newspaper in central Alberta. The newspaper published the letter on June 17,

2002. As it is the focus of this matter I set it out in full:

The following is not intended for those who are suffering for an unwanted sexual

identity crisis. For you, I have understanding, care, compassion and tolerance. I

sympathize with you and offer you my love and fellowship.

I prayerfully beseech you to seek help, and I assure you that your present

enslavement to homosexuality can be remedied. Many outspoken, former

homosexuals are free today.

Instead, this is aimed precisely at every individual that in any way supports the

homosexual machine that has been mercilessly gaining ground in our society since

the 1960's. I cannot pity you any longer and remain inactive. You have caused far

too much damage.

My banner has now been raised and war has been declared so as to defend the

precious sanctity of our innocent children and youth , that you so eagerly toil, day

and night, to consume. With me stand the greatest weapons that you have

encountered to date - God and the “Moral Majority.” Know this, we will defeat

you, then heal the damage you have caused.

Modern society has become dispassionate to the cause of righteousness. Many

people are so apathetic and desensitized today that they cannot even accurately

define the term “morality.”

Page: 5

The masses have dug in and continue to excuse their failure to stand against

horrendous atrocities such as the aggressive propagation of homo- and bisexuality.

Inexcusable justifications such as “I’m just not sure where the truth lies” or “If

they don’t affect me then I don’t care what they do,” abound from the lips of the

quantifiable majority.

Face the facts, it is affecting you. Like it or not, every professing heterosexual is

having their future aggressively chopped at the roots.

Edmund Burke’s observation that, “All that is required for the triumph of evil is

that good men do nothing,” has been confirmed time and time again. From

kindergarten class on, our children, your grandchildren are being strategically

targeted, psychologically abused and brainwashed by homosexual and prohomosexual

educators.

Our children are being victimized by repugnant and premeditated strategies,

aimed at desensitizing and eventually recruiting our young into their camps. Think

about it, children as young as five and six years of age are being subjected to

psychologically and physiologically damaging pro-homosexual literature and

guidance in the public school system; all under the fraudulent guise of equal

rights.

Your children are being warped into believing that same-sex families are

acceptable; that men kissing men is appropriate.

Your teenagers are being instructed on how to perform so-called safe same gender

oral and anal sex and at the same time being told that it is normal, natural and

even productive. Will your child be the next victim that tests homosexuality

positive?

Come on people, wake up! It’s time to stand together and take whatever steps are

necessary to reverse the wickedness that our lethargy has authorized to spawn.

Where homosexuality flourishes, all manner of wickedness abounds.

Regardless of what you hear, the militant homosexual agenda isn’t rooted in

protecting homosexuals from “gay bashing” The agenda is clearly about

homosexual activists that include, teachers, politicians, lawyers, Supreme Court

judges, and God forbid, even so-called ministers, who are all determined to gain

complete equality in our nation and even worse, our world.

Don’t allow yourself to be deceived any longer. These activists are not morally

upright citizens, concerned about the best interests of our society. They are

perverse, self-centred and morally deprived individuals who are spreading their

Page: 6

psychological disease into every area of our lives. Homosexual rights activists and

those that defend them, are just as immoral as the pedophiles, drug dealers and

pimps that plague our communities.

The homosexual agenda is not gaining ground because it is morally backed. It is

gaining ground simply because you, Mr. and Mrs. Heterosexual, do nothing to

stop it. It is only a matter of time before some of these same morally bankrupt

individuals such as those involved with NAMBLA, the North American Man/Boy

Lovers Association, will achieve their goal to have sexual relations with children

and assert that it is a matter of free choice and claim that we are intolerant bigots

not to accept it.

If you are reading this and think that this is alarmist, then I simply ask you this:

how bad do things have to become before you will get involved? It’s time to start

taking back what the enemy has taken from you. The safety and future of our

children is at stake.

(signed) Rev. Stephen Boissoin, Central Alberta Chairman, Concerned Christian

Coalition, Red Deer.

B. The July 4, 2002 Newspaper Story

[14] While the letter of the Appellant prompted numerous responsive letters to that editor over

the following days and weeks, including at least one rejoinder from the Appellant, a news item

published in the July 4, 2002 edition of the Red Deer Advocate became almost as important to

the complaint and the Panel’s decision as the impugned letter.

[15] That news item reported that a gay teenager had been seriously assaulted in downtown

Red Deer solely because he was gay. In the course of detailing a number of comments attributed

to the victim, the following was reported:

“He also doesn’t feel safe reading the anti-gay statements like the ones in the Red

Deer Advocate’s June 17 letter to the editor from Stephen Boissoin of the

Concerned Christian Coalition.

“I feel the letter was just encouragement for people to go out and stop the gay

rights movement.”

[16] This reported assault with an alleged connection to the impugned letter became quite

significant.

[17] The Respondent, Dr. Lund, testified that the reported assault and the specific reference by

the victim to the appellant’s letter triggered his complaint to the Human Rights and Citizenship

Page: 7

Commission (Transcript p. 6/ 5-16). Dr. Lund maintained that the Appellant’s letter exposed

people to hatred and contempt and that it fostered an atmosphere of violence, citing the reported

assault and the quotation of the victim as support for his claim (13/12-14/10). In his final

argument to the Panel the Respondent listed 5 “facts of the case” that had been established.

Numbers 4 and 5 of those “proven facts” were the assault and the newspaper quotation from the

victim.(250/26-251/5).

[18] The sole expert witness called by the Appellant provided a report which took into account

the reported assault and the quotation from the victim. The witness was cross-examined on these

two points by counsel on behalf of the Attorney General of Alberta (232/25-234/27). In final

argument Crown counsel relied upon the assault and the quotation from the victim as providing

linkage for his argument that the impugned letter could prompt persons to engage in prohibited,

discriminatory practices (327/23 - 329/2).

[19] During final argument the Panel agreed with counsel for the Appellant that “no one gave

evidence that in fact this individual was attacked because of their sexual orientation” (239/5-8).

[20] Unfortunately no one seemed to appreciate that there was no evidence of an assault at all,

nor any evidence as to the accuracy of the news report of the alleged assault nor of the quotation

attributed to the alleged victim. No evidence was provided of the details of the reporter’s

interview, what questions were asked, nor how the subject of the Appellant’s letter to the editor

arose during the interview. The reporter never testified nor did the alleged victim testify.

[21] No one seemed to appreciate that there was, perhaps, an even more significant problem in

the evidence. Assuming there was an assault, there was no evidence to support the inference, let

alone conclusion that the assaulter had previously read the letter to the editor or had been

influenced by it to commit his crime.

[22] The significance of all these oversights cannot be overstated. For example, some counsel

relied upon this hearsay as proven fact to support their arguments.

[23] Unfortunately, in arriving at her decision, the Panel also mistakenly presumed that the

newspaper report provided evidence of an assault and/or that the letter served as some sort of

trigger for that assault. The Panel then utilized those erroneous presumptions to help draw

conclusions of great legal significance in the case - that the letter violated s. 3(1)(b) of the Act

and that the Panel had jurisdiction to adjudicate upon the complaint. These fundamental

deficiencies will be discussed in greater detail later in these reasons.

Analysis

A. The Vires of the Legislation

[24] For ease of reference, the pertinent portions of s. 3(1)(b) of the Act are set out:

Page: 8

5[1986] 2 S.C.R. 226.

6Ibid, para. 4.

71st ed. revised (Toronto: Thomson Carswell, 2006)

8Ibid., Vol. 1, p. 3 - 56.3

“No person shall publish ... or cause to be published ... before the public any

statement ... that ... is likely to expose a person or a class of persons to hatred or

contempt because of the ... sexual orientation ... of that person or class of

persons.”

[25] I will turn first to a consideration of the Province’s jurisdiction to enact this legislation.

[26] A convenient start point is the majority decision of Estey, J. in Scowby v. Saskatchewan

(Board of Inquiry):5

“[O]ne does not approach a provincial human rights code on the basis that it is

constitutionally presumptively suspect. The great bulk of the protections granted

by such codes would appear to be beyond challenge as being legislation in relation

to property and civil rights, or to matters of merely local or private nature. They

deal, for example, with questions of discrimination in housing and employment,

and equal access to goods and services. These legislative protections are valid not

because they affirm interests such as liberty, or human dignity, but because the

activities legislated, that is, for example, housing, employment, and education, are

themselves legitimate areas of provincial concern under ss. 92 and 93.”6

[27] In his text Discrimination and the Law,7 Justice Tarnopolsky writes:

“Therefore, human rights legislation in Canada, which prohibits discrimination

with respect to employment, residential and commercial accommodation, goods,

services, facilities, and public accommodation, and publication or broadcasting

with respect thereto, is essentially within the legislative jurisdiction of the

provinces.”8

[28] But, as was submitted by the Appellant and the intervener Canadian Civil Liberties

Association (hereafter the C.C.L.A.), a literal reading of s. 3(1)(b) of the Act finds a “stand-alone

prohibition on hateful or contemptuous expression in any public forum, however remote that may

Page: 9

9From C.C.L.A. Brief of Argument, paragraph 8. The listed fields in the Act relate to

discrimination involving the supply of goods, services, accommodations, facilities, tenancies, and

certain matters involving employment. See para. 31, infra.

10From C.C.F.’s Brief, paragraph 12.

11RSA 2000, Chapter I-8.

12Saskatchewan (Human Rights Commission) v. Engineering Students’ Society (1989)

CarswellSask 627 (C.A.) page 17.

be from the listed fields in the Act”.9 Such an interpretation creates a risk of the legislation being

improperly applied to all expressions including those having no real link to subject matters which

fall within provincial jurisdiction. The intervener Canadian Constitution Foundation, [hereafter

the C.C.F.] observed that on a literal interpretation one could violate s. 3(1)(b) without any

injured party suffering a loss in the areas of service, housing or employment.10 Thus, the

appellant and others argue that, the legislation is ultra vires the Province.

[29] Taking a cue from the Scowby decision, I’m not satisfied that the presumption of

legislative validity is overcome. With respect, the ultra vires argument only arises due to

mistaken reliance upon a narrow, literal interpretation of the section.

[30] Section 11 of the Alberta Interpretation Act11 directs that :

“An enactment shall be construed as remedial, and shall be given the fair, large

and liberal construction and interpretation, that best ensures the attainment of its

objects”.

When determining the intention of the legislature, and with due regard to the preamble of the Act,

“we are to have particular regard ... to the overall purpose and special nature of human rights

legislation; and we are to strive to fulfill that purpose”.12

[31] In my opinion the broad intent of the Act is to achieve equality for all through the

prohibition of specific discriminatory practices or activities in the provision of goods, services,

accommodations and facilities (s.4); tenancies (s.5); and, employment practices (s.s. 6, 7, 8, & 9).

While the Act seeks to achieve its intent in various ways, the aim of section 3(1) is to discourage,

if not eliminate activity which reenforces prejudice which, in turn, fosters discrimination and

discriminatory practices against persons or classes of persons.

[32] Using the issue in this case as an example, section 3(1)(a), prohibits inter alia, the

publishing of any statement “that indicates discrimination or an intention to discriminate” against

a person or class of persons because of their sexual orientation. To be clear, the inferential

discriminatory effects are those listed in section 4 to 9 of the Act.

Page: 10

13Engineering Students Society, supra, page 4.

14Ibid., at pp 30-31.

[33] Similarly, s. 3(1)(b) is aimed at prohibiting public statements which are likely to expose a

person or class of persons to hatred or contempt because of their sexual orientation. But, to be

clear, the purpose of the section cannot be to simply restrain hateful or contemptuous speech per

se. Such legislation would be ultra vires the province. As was said in the context of examining

similar legislation in Saskatchewan:

“... having regard especially for the division of powers between the federal and

provincial governments, the section requires that the affront be productive of a

specific discriminatory effect or effects. An adverse general effect upon the class

will not be sufficient to engage the provision.”13

The failure to prohibit such hateful or contemptuous statements can result in other persons -

readers or listeners - engaging in prohibited discriminatory practices or activities against a person

or class of persons because of their sexual orientation. Simply put (in the fact context of this

case) s. 3(1)(b) is directed at eliminating statements which are hateful or contemptuous of a

person or class of persons due to their sexual orientation, and which are also likely to cause

others to engage in any of the discriminatory practices listed in the Act.14

[34] I agree with a portion of the C.C.L.A. written submission that a contextual and purposive

interpretation of s. 3(1)(b) must be employed

“... that sees the provision in its context as aiming to reinforce and promote the

goals of the Act, by preventing specific acts of discrimination in the fields of

activity listed in the statute. These fields of activity include accommodation,

property, tenancy and employment. Section 3 is therefore read as an independent

prohibition against publishing or displaying materials that would ... lead to

specific acts of discrimination in these fields.”

[35] To similar effect was the Attorney General’s written submission:

“As discussed by Dickson C.J. for the majority in Taylor, the connection between

hate propaganda and acts of discrimination is the basis upon which the province

may limit such expression:

[H]ate propaganda can operate to convince listeners, even if subtly, that members

of certain racial or religious groups are inferior. “The result may be an increase in

Page: 11

15Canada v. Taylor [1990] 3 S.C.R. 892 at para 40.

16[1990] 3 S.C.R. 697 at para’s. 341-345.

17Supra, para. 3.

18Subject, obviously, to Charter considerations.

192001 CarswellAlta 1066 (Q.B.).

acts of discrimination, including the denial of equal opportunity in the provision

of goods, services, facilities, and even incidents of violence.” [emphasis added].15

[36] However, I disagree with any implication that the Province has jurisdiction to regulate

hateful expressions that may lead to violence. That is a matter governed by the criminal law

power reserved solely to Parliament. But I also wish to make it clear that I reject the submission

of the appellant and others that the Province’s proscription of “hate speech” automatically

transgresses upon the Federal criminal law power. In R. v. Keegstra, the Supreme Court clearly

indicated that provincial human rights legislation may quite properly coexist with the criminal

law sanction.16 I also reject the submission that if the Act did provide for penalties for violations

of s. 3(1)(b), that would automatically translate the legislation into an unconstitutional incursion

upon the criminal law power. As was pithily observed by Estey, J. in the Scowby decision:

“The province may, under s. 92(15), create an offence to enforce or support a

constitutionally valid provincial law or program”.17

[37] Accordingly, I agree with the Attorney General that Alberta has the lawful authority to

regulate discriminatory expression when such expression has effects falling within subject

matters over which the province has legislative jurisdiction granted by s. 92 & s. 93 of the

Constitution Act, 1867.18

B. Interpreting the Legislation

[38] As has been explained s. 3(1)(b) requires some causal link between publication of the

message and the infringement of rights contained in the Act. The next issue is to examine the

nature of that connection or linkage between the publishing of the hateful message and the

specific prohibited acts of discrimination listed in the Act.

[39] The language of the section utilizes the phrase “likely to expose”. The Panel referred to

the decision in Re: Kane,19 where Rooke, J. (as he then was) said of the precursor legislation:

“... the phrase “likely to expose” is a balance of probabilities test. In other words

what s. 2(1)(b) seeks to prevent is representations which are more likely than not

Page: 12

20Ibid, para. 122.

21Ibid para. 125.

22Seek s. 31 of the Act.

23 C.C.L.A. Brief of argument, paragraph 34.

to expose a person or class of persons to hatred or contempt on the basis of the

prohibited grounds”.20

[40] The Panel adopted a test proposed by Rooke, J:

Does the communication itself express hatred or contempt of a person or group on

a basis of one or more of the listed grounds? Would a reasonable person, informed

about the context, understand the message as expressing hatred or contempt?

Assessed in its context, is the likely effect of the communication to make it more

acceptable to others to manifest hatred or contempt against the person or group

concerned? Would a reasonable person consider it more likely than not to expose

members of the target group to hatred and contempt?21

[41] By way of background, it should be noted that Rooke J’s decision in Re: Kane was in

response to a panel’s request for his opinion upon 5 questions of law arising in a particular

proceeding before that panel.22 What seems not to be appreciated is that Re: Kane did not purport

to assess in detail every element of a s. 3(1)(b) complaint which must be considered by a panel.

[42] However, in the case before me the Panel appears to have thought otherwise. Thus the

Panel only purported to apply Rooke J’s test in order to reach its decision and failed to go further

and assess the likelihood that the letter’s contents would make it more acceptable for others to

manifest hatred or contempt toward homosexuals by engaging in discriminatory activity

prohibited by the Act.

[43] While Re Kane decision said very little about the nature of the required connection or

linkage beyond the reference to “others” manifesting hatred or contempt, the C.C.L.A. argued

before the Panel and before this Court that the allegedly hateful or contemptuous speech must be

directly linked to areas of prohibited discriminatory practices and that s. 3(1)(b) applies only to

hateful expression that itself signals an intention to engage in discriminatory behaviour, or seeks

to persuade another person to do so.23 I agree. As a result, and in order to give proper effect to

s.3(1)(b), both the message and this intended effect must be considered. But, secondly, there

must be some likelihood that the message might bring about a prohibited discriminatory practice

in order to engage s. 3(1)(b).

Page: 13

24Section 3(2) reads “Nothing in this section shall be deemed to interfere with the free

expression of opinion on any subject.”

25Saskatchewan (Human Rights Commission) v. Bell (1994) CarswellSask 196 (C.A.), 27.

[44] I recognize that a consideration of a writer’s motivation or intent may initially appear

misplaced since s.3(1)(b) is silent about these matters. That may be contrasted to s.(3)(1)(a)

where they are explicitly mentioned. Yet every message has some purpose or intent behind its

thoughtful creation and planned dissemination to others. Further, I also note the reference in

s.3(2) of the Act to the “free expression of opinion”24 (which may, in turn, prompt consideration

of Charter values). I conclude that a writer’s motivation or intent must therefore be implicated in

s.3(1)(b).

[45] Thus a panel’s examination of a complaint must include some consideration or

assessment of a writer’s intent. Reasonable inferences in that regard may also be drawn

notwithstanding a respondent’s claim of no discriminatory intent.

[46] Properly drawing the link or connection between the discriminatory message and an

intended discriminatory practice is crucial.

[47] Consider, for example, the case of a vendor who was selling stickers which depicted

caricatures of persons of Oriental, Black or East Indian origin over which was superimposed a

red circle with a slash running through it - which is a universal symbol for “forbidden” or “not

allowed” or “not wanted”. The court’s interpretation of the message conveyed by the stickers was

as follows:

“This use of the symbol, is insidious. Although the symbol, as used, is ambiguous,

it is, nevertheless, a very powerful one: it may be interpreted as advocating

anything from mere disapproval of the presence of those depicted to genocide of

them. Often this symbol is a direction not to enter or a prohibition against doing

some act with attendant consequences including, from time to time, harm to the

one who enters or does the act. The effect of the stickers on any individual viewer

must necessarily be in part subjective. But even if there are some viewers who

would not see the stickers as actually exposing to hatred, they certainly tend to do

so.”25

[48] What then of the intended effect in having this racist message offered for public sale?

What of the required linkage between the message and potential discriminatory practice?

[49] The Court had no difficulty in quickly concluding that both the purpose and effect of

displaying the stickers would cause or tended to cause others to engage in discriminatory

Page: 14

26Ibid., paragraph 29.

27Ibid.

28Ibid.

29See Engineering Students, supra.

practices.26 By displaying and selling the stickers Bell provided to persons who might be inclined

to contravene the Act, the means to do so.

“For example, a businessman at his place of business, or a provider of public

accommodation at the premises that he had to let, by posting the sticker or stickers

at the entrance would make it clear that any goods, services or amenities provided

would not be made available to the groups depicted, or at least their trade was not

wanted.”27

[50] The Court admitted that there was no evidence of discriminatory practices actually

occuring, but the Saskatchewan legislation “required only that the display would tend to foster

discrimination, not that that was its actual effect.”28 This may be another way of saying that the

display sought to persuade others to practice prohibited discrimination.

[51] But seeking to persuade others to practice discrimination is not the same as there being a

likelihood that prohibited discriminatory practices might, in fact, ensue. Simply fostering

discriminatory beliefs in another does not automatically make it likely that the individual might

then act out those beliefs through prohibited discriminatory activity.29

[52] The Bell decision never really grappled with this issue. But, to be fair, Mr. Bell’s appeal

against the ordered injunction was only on constitutional grounds. Thus the Court’s conclusions

regarding the potentially discriminatory effects of the racist stickers appears not to have been

much of an issue in that appeal.

[53] The Court admitted there was no evidence led concerning discriminatory practices of

landlords or shopkeepers in the community or the province notwithstanding Mr. Bell had sold a

number of the stickers. Surely, if it existed, then some such evidence would have been led.

Indeed, how strange that the Court concerned itself with the mythical store owner who might

purchase and display the stickers for a discriminatory purpose when the Court had a real store

owner before it in Mr. Bell and yet never suggested he had attempted or even considered

implementing a discriminatory activity. It should also be noted that notwithstanding a number of

stickers had been sold, there was no evidence led that even one sticker had been posted by a

landlord or shopkeeper - or anyone else for that matter.

Page: 15

30This point may be overlooked by some litigants. In Owens v. Saskatchewan (Human

Rights Commission) 2006 CarswellSask 217 (C.A.) the court specifically noted that the

connection to a potential prohibited discriminatory activity was not an issue before it - see

paragraph 24.

31Trinity Western University v. College of Teachers (British Columbia) [2001] 1 S.C.R.

772 at paras. 36 & 38.

32Alberta v. Hutterian Brethren of Wilson Colony 2009 SCC 37, paragraph 82.

[54] Interestingly, the Court made no reference to the countervailing consideration that

landlords or shopkeepers are presumed to know that the law prohibits discrimination vis-a-vis

potential tenants or customers on racial grounds. Thus in finding Mr. Bell at fault, the court had

to presume that there was the likelihood that some landlord or shopkeeper, somewhere in

Saskatchewan, might be persuaded to knowingly violate the law. In the absence of judicial notice

of notorious facts or of facts that are capable of immediate and irrefutable proof, I respectfully

suggest that one should hesitate to come to such conclusions without some evidence.

[55] If the Act purported to simply restrain hate speech notwithstanding that no likelihood of

discriminatory activity could be demonstrated then the legislation would be ultra vires. Hateful or

contemptuous speech that may prompt or even add to existing prejudice against a class of

persons is not prohibited per se by the Act. As earlier discussed, more is required.30

[56] Absent some “concrete evidence”31 linking the message to discriminatory practices, only

reasonable and appropriate inferences as to discriminatory effects may be drawn and relied upon

when considering the “likely to expose” requirement. This caution was recently reexpressed by

the Supreme Court:

“In Trinity Western University v. British Columbia College of Teachers [citations

omitted] a risk was held to be overly speculative because there was insufficient

evidence that potentially discriminatory beliefs were actually resulting in

discriminatory conduct.”32

Speculation in the guise of reasonable inferences and overly enthusiastic interpretations

or extrapolations of “cause and effect” must be avoided. Care must be taken not to simply move

from a finding that the message is hateful or contemptuous to then presume that discriminatory

practices are likely to ensue. It is worth underscoring that most board decisions cited during this

appeal applied the Supreme Court’s decision in Taylor (where the definition of “hate” and

“contempt” were set and the insidious effect of resultant prejudice was discussed), with no

apparent appreciation that the Federal provision being examined requires no connection to

prohibited discriminatory activity. That is far different from the provincial legislation governing

this case.

Page: 16

33See para. 40 of these reasons, supra.

C. Applying the Legislation to the Facts

[57] Here is how the Attorney General expressed the linkage in this case during submissions

before the Panel (and essentially repeated before me):

On a plain reading, the letter is asking the reader to do whatever they can within

their own sphere of influence to stop the homosexual machine. Now, clearly

readers of that letter will be from every social strata and they will be involved in

every sphere of activity that is covered by the Human Rights Act. So Mr.

Boissoin’s letter on plain reading exhorts people to discriminate in employment,

discriminate in tenancy, discriminate in goods and services. That is the letter

itself. (327/23 - 328/5).

[58] This submission would appear to be a practical example of what Rooke, J. meant when he

discussed “making it more acceptable to others to manifest hatred.”33 Thus the “others” he

mentions would be the landlord, the employer, etc. who would likely manifest the hatred or

contempt through discriminatory activities within their “sphere of activity”.

D. Analysis

(i) Absence of Required Linkage to Discriminatory Activity

[59] With great respect, my plain reading of the letter does not lead me to the inference

pleaded by the Crown. The appellant’s testimony refutes any suggestion that this was his intent.

The letter’s target audience are people that the appellant believes are apathetic to the inroads

made by the “homosexual machine” which is detrimental to his view of what a fit and proper

heterosexual society should look like. But inferring some sort of call for discriminatory practices

prohibited by provincial law is an unreasonable interpretation of the letter’s message.

[60] Again, and it bears repeating, absent some sort of connection or linkage between the

impugned message and discriminatory practices the Act has no authority to restrain the message.

[61] In this case there was no identification of individuals or groups who might potentially

undertake prohibited discriminatory activity. Nor was there evidence that discriminatory

practices forbidden by the Act were likely to occur.

[62] The evidence regarding potential effects provided a variety of concerns, none of which

fell within the statute’s reach.

[63] Mr. Doug Jones, retired hate/bias coordinator with the Calgary Police Service offered this

opinion about the letter:

Page: 17

34103/22-23.

35118/12.

36118/13-15.

37122/7-9.

“It’s certainly my opinion that when people who haven’t had an opportunity to

learn more about sexuality, who are young, impressionable, perhaps sitting on the

fence and not sure what direction or what’s okay or what isn’t, when they read

something like this, it can definitely push them over the edge and in a direction

that could cause them to act out.

Young people are very easily impressioned by something like this. And showing it

to their friends or getting a group of friends together, it’s easy for something to

then occur as a result. And that’s my concern. (98/22 - 99/7)

[64] With respect, this opinion was of no relevance to the Panel. A fear of young people

“acting out” in response to the letter isn’t activity governed by the Act. Additionally, it is curious

that the witness seemed to be of the view that young and impressionable youths who are at risk of

acting out, are readers of newspapers and, in particular, of letters to the editor of newspapers. The

source of this view was not explained and thus its reliability cannot be ascertained. In the result,

even had the opinion been relevant I would give little, if any, weight to it.

[65] Dr. Kevin Alderson, psychologist, author and university professor, who unabashedly

described himself thusly: “I am considered the expert in Calgary in terms of gay and lesbian

psychology”34 bluntly described the reasonable reader’s probable reaction to the letter as “what a

bunch of crap”.35 He expressed a concern however with what might be the reaction of the

unreasonable person,36 the irrational unhealthy people.37In that regard he spoke of the hate crimes

perpetrated by James Keegstra and the crimes occuring in the schools in Taber, Alberta, Littleton,

Colorado and at the Eæole Polytechnique in Montreal. But after putting references to criminal

activity aside, Dr. Alderson only spoke of a concern with the cumulative factor - that is, that this

letter would be added to the already accumulated pile of similar messages further exacerbating

intolerance and homophobia.

[66] While one may not take issue with his opinions, they are not strictly relevant to the

discriminatory activities that the Act is concerned with and, accordingly, do not really assist in

the analysis required by s. 3(1)(b) of the Act.

[67] As was earlier explained, s. 3(1)(b) of the Act, in order to be intra vires, requires that the

message of alleged hate or contempt be connected to the likely perpetration of acts of

Page: 18

38Para. 350(b).

39Para. 350(c).

40Paras. 350(a), 351.

41Para. 352.

42Para. 352.

43Section 92(16) of the Constitution Act, 1867.

discrimination listed in the Act eg denial of equal opportunity in the provision of goods, services,

accommodations, employment, etc. Only then would a panel have jurisdiction to find a violation

of s. 3(1)(b).

(ii) Mistaken Basis For Finding Jurisdiction

[68] No where in her decision does the Panel address the required linkage to discriminatory

activity.

[69] Instead, the Panel mistakenly found its jurisdiction to deal with the complaint by relying

upon two erroneous conclusions. The first error was “the circumstantial connection” between the

Appellant’s letter and the assault on the gay teenager in Red Deer.38 The Panel ruled:

“Because it is hate speech, it becomes a local matter. Not taking jurisdiction

would mean that inciting hatred would be acceptable up to the point that a crime

occurs as a result of it. This cannot be the case, given the context of this being

rural Alberta that is a matter of a local nature”.39

[70] The second error the Panel relied upon to find its jurisdiction was the content of the

Appellant’s letter which related, at least indirectly, to the educational system in Alberta

involving “a critique of the homosexual agenda which he alleged existed in the school system in

Red Deer, Alberta”40 including a complaint regarding school curriculum.41 The Panel concluded

that the educational system in Alberta is a matter of a local and private nature and then held that

“In founding his letter on the basis of actions of the Government of Alberta, Mr. Boissoin

accedes to the authority of the provincial jurisdiction.42

[71] With respect, the Panel got it somewhat backwards. The test for jurisdiction is not that the

letter addressed issues of a “Local or Private Nature”43 but whether the letter’s content runs afoul

of s. 3(1)(b) of the Act. This fundamental error is fatal to the Panel’s decision. This mistake is in

addition to the factual error concerning the “circumstantial connection” of the letter to an

Page: 19

44Para. 354.

45See paragraph 40 of these reasons.

unproven assault. The significance of this error was previously discussed in these Reason and

need not be repeated.

[72] In addition, the Panel mistakenly confined its attention to a concern with the vulnerability

and endangerment of homosexuals as is demonstrated in a passage from the Panel’s decision:

“I also accept Dr. Alderson’s evidence that Mr. Boission’s letter was likely to

expose gay persons to more hatred in the community and that the effects of hate

literature is to increase the threat level the physical safety of gays”.44

[73] The Panel’s mistaken focus prompted her to incorrectly adopt a literal interpretation of s.

3(1)(b) of the Act which would prohibit all hateful and contemptuous expression in any public

forum and heedless of the required connection or linkage to acts of discrimination listed in the

Act. This error is fatal to the Panel’s decision.

(iii) Misinterpreting the “reasonable person’s understanding” of the letter’s

contents

[74] In determining if a message was “likely to expose” people to hatred or contempt, Rooke J

in Re: Kane had proposed a test,45 which included these questions:

“Does the communication itself express hatred or contempt of a person or group

on a basis of one or more of the listed grounds? Would a reasonable person,

informed about the context, understand the message as expressing hatred or

contempt?

[75] The Panel’s answer is found at paragraph 320:

In response to the questions posed by Justice Rooke, in my view it is clear that the

letter expressed hatred or contempt for a group of persons on the basis of their

sexual preference. It is also my view that any person of reasonable intelligence

informed about the context of this statement would understand the message is

expressing hatred and/or contempt. This is obvious from the response to the

message in other letters to the editor of the Red Deer Advocate that followed this

publication and from the incidence [sic] at the hearing.

[76] With respect, there is no basis to settle the “reasonable person’s understanding” of the

letter’s message simply upon reading subsequent letters to the editor. The Panel further erred in

her inferential conclusion that these subsequent writers were persons of reasonable intelligence.

Page: 20

46Supra, paras. 60 & 61.

47Ibid., para. 61.

They may very well have been but how the Panel came to her conclusion isn’t explained nor, in

any event, is it clear that these writers, were in fact, “informed about the context”, which is a

requirement of Rooke, J’s. reasonable person test. But even if she was correct in her conclusion,

the Panel said nothing about the contradictory letters to the editor which were supportive of the

Appellant. Why were all of those writers ignored? The danger in even partially relying upon

anything akin to a public referendum when applying principles of law is obvious.

[77] Secondly her reference to “the incidence [sic] heard at the hearing” can only be a

reference to the newspaper report of the alleged assault and purported tie-in of that allegation to

the impugned letter. I have previously explained the fallacy in presuming that these hearsay

events are proven fact or that the letter triggered the commission of a crime. Accordingly I will

not repeat myself.

[78] In the result, I find that the Panel failed to properly apply the test expressed by Rooke, J.

in determining the “reasonable person’s understanding” of the letter’s message by taking

irrelevant considerations into account. This error undermines the Panel’s conclusion.

(iv) Whether the letter expressed hatred or contempt for homosexuals

[79] In her decision, the Panel repeated the definitions of “hatred” and “contempt” established

in Taylor where Dickson, C.J. adopted definitions provided in previous Human Rights

Commission decisions:

Hatred -active dislike, detestation, enmity, ill-will, malevolence

-a set of emotions and feelings which involve extreme ill will towards

another person or group of persons

-to say that one “hates” another means in effect that one finds no

redeeming qualities in the latter

Contempt -the condition of being condemned or despised; dishonour or disgrace

-a mental process of “looking down” upon or treating as inferior the object

of one’s feelings

-to be viewed as similarly extreme as hate46

[80] Dickson, C.J. then added his own gloss to these two definitions to require “unusually

strong and deep-felt emotions of detestation, calumny and vilification.”47

Page: 21

48Ibid., para. 151.

[81] Thus the language under examination must reflect these extreme or unusually strong and

deep-felt emotions. Nothing less will suffice.

[82] While she was in dissent in Taylor, the judgment of McLachlin, J. (as she then was)

contains cautionary comment that parties would do well to keep in mind during their analysis.

She pointed out that the words “hatred” and “contempt” cover a range of emotions. She then

added:

“Moreover, both terms are vague and subjective, capable of extension should the

interpreter be so inclined. Where does dislike leave off and hatred or contempt

begin? The use of these words in s. 13(1) opens the door to investigations and

inquiries for matters which have more to do with dislike than discrimination. The

phrase does not assist in sending a clear and precise indication to members of

society as to what the limits or impugned speech are. In short, by using such

vague, emotive terms without definition, the state necessarily incurs the risk of

catching within the ambit of the regulated area expression falling short of

hatred.”48

[83] Thus the need for great care when applying the true meaning of “hate and contempt” to

any impugned message cannot be overemphasized. Any potential restriction upon freedom of

expression demands no less.

[84] Indeed the Act speaks to this very point. Section 3(2) reads:

“Nothing in this section shall be deemed to interfere with the free expression of

opinion on any subject.”

[85] I agree that this subsection does not operate to provide blanket protection for the

publication of an otherwise unlawful message through the simple device of describing that

message as a political, religious or personal “opinion.” The authorities quoted by the Panel at

paragraph 340 & 314 of her decision make this clear. Indeed, one can say that every message

contains some measure of the author’s opinion which he freely seeks to express.

[86] But I also agree with Rooke, J.’s opinion in Re Kane that the purpose of s. 3(2) of the Act:

“... is an admonition to balance the two competing objectives of freedom of

expression and the eradication of discrimination. This point was made by Dickson

C.J.C. in Taylor, at 930:

Perhaps the so-called exemptions found in many human rights

statues are best seen as indicating to human rights tribunals the

Page: 22

49Supra, para. 73, see also para. 81.

50Now s. 3(1)(b)

51Ibid., para. 77.

52Ibid., para. 85.

necessity of balancing the objective of eradicating discrimination

with the need to protect free expression.”49

[87] How to approach that balancing activity was set out by Rooke, J.:

“In my view, a two step process such as that suggested by the Director is what is

required under the Act. Correctly defining and applying the terms “hatred” and

“contempt” in the consideration of s. 2(1)(b)50 will, by itself, go a long way to

ensure that a balance is struck between the two competing rights. However, it is

my opinion that once a prima facie breach is found, the Panel must go on to

specifically balance freedom of expression against the particular breach.”51

[88] How to conduct that balancing process was set out by Rooke, J. as follows:

What is required to properly balance the two competing interests is an

examination of the nature of the statement in a full, contextual manner which

recognizes the objectives and goals of the legislation and is Charter sensitive. It

will also be necessary for the Panel to apply other principles enunciated by the

Supreme Court of Canada in relation to s. 2(b). In particular it is essential that the

Panel consider the nature and context of the expression and the degree of

protection which this type of expression is afforded (Keegstra at 766; and Taylor

at 922). The Panel should also give full recognition to the other provisions of the

Charter which may come into play. These may include s. 15 (equality rights); s.

25 (aboriginal rights); s. 27 (multicultural rights); s. 28 (sexual equality); and s.

2(a) (freedom of religion).52

[89] In my view the Panel erred in its finding that the impugned letter was hateful and

contemptuous of homosexuals and the Panel further erred by failing to properly conduct the

required s. 3(2) balancing act.

[90] As to the first error, the Panel cited particular passages from the letter at paragraph 322 to

provide support for her hate/contemptuous finding. With respect, the words contained in those

passages are not of the extreme nature that the applicable definitions require. That the language

may be jarring, offensive, bewildering, puerile, nonsensical and insulting may admit of little

Page: 23

53Transcript p. 235/3-5.

54Supra.

55Supra.

56Whatcott v. Saskatchewan Human Rights Tribunal 2007 CarswellSask. 836(Q.B.).

57Owens v. Saskatchewan (Human Rights Commission) 2006 CarswellSask. 217(C.A.).

58Transcript pp. 300-301.

59To similar effect, see also para. 324E.

doubt. But the language does not go so far as to fall within the prohibited status of “hate” or

“contempt”. In this regard, it is unfortunate that Crown Counsel, in the course of cross examining

the appellant’s sole expert witness, asked that witness if he could explain the difference between

the letter and Adolf Hitler’s book Mein Kampf.53 The damning innuendo is obvious. (On the

other hand, if a parallel could be fairly drawn it should be noted that, far from being restrained,

Mein Kampf is available at the Calgary Public Library.)

[91] A comparison of the letter’s language to the language or message contained in the cases

of Bell,54 Taylor,55 and Whatcott56 suggests a much more benign tone to the letter.

[92] Further, I cannot find that the language in the case at bar is worse in content, implication

and tone than that which passed muster in Owens.57 I also observe that the Panel made no

reference to the observations of E.G.A.L.E. Canada who castigated the content but supported the

publishing of the letter.58

[93] I am also concerned that by simply listing particular passages from the letter the Panel

was not fairly keeping those phrases within the context of their use in the letter. Extracting the

phrases from their context makes them appear much more controversial, threatening and jarring.

This undermines the validity of any interpretation.

[94] In paragraph 323 of her reasons the Panel supported her finding that the letter expressed

hatred and contempt of homosexuals by making two particular observations.59

[95] The first was that the letter “makes erroneous connections between homosexuality and

disease” and “draws false analogies between homosexuality and pedophilia”. With respect,

complaints about factual error or false reasoning by the author would seem to be properly met, at

least at first instance, by counter speech correcting those failures - not by restraining the remarks.

[96] But more importantly, the Panel appears to have misread the letter. For example, the only

reference to “disease” in the whole letter was to “psychological disease” -whatever that might be.

Page: 24

60Re Kane see para. 77 above.

But clearly the reference wasn’t to bodily diseases or illnesses as that word is usually defined.

Secondly the letter’s reference to homosexuals and pedophilia was only to individuals involved

with NAMBLA - the North American Man/Boy Lovers Association. Inasmuch as such an

organization did exist (and may still exist), the Appellant’s comment can hardly constitute a false

analogy.

[97] The second example of hatred and contempt cited by the Panel was the “militaristic tone”

of some of the letter’s contents. eg “My banner has now been raised and war has been declared.”

However a fair reading of the letter reveals that the author’s language choice was for

metaphorical purposes. With respect, no one could reasonably read the letter as an actual “call to

arms.” By analogy, critics might reflect upon the language contained in the well-known hymn

“Onward Christian Soldiers”. Surely no one can reasonably suggest that Christians singing the

hymn at Sunday church service are being called upon to march into an actual war against non-

Christians.

[98] But for the sake of argument, let us presume an interpretation initially supporting a prima

facie case of hatred or contempt. That takes one to the second step in the s. 3(2) balancing

process. Rooke, J. reminds us that balancing freedom of expression against the particular breach

requires “an examination of the nature of the statement in a full, contextual manner”.60 Let us

examine how the Panel considered this issue.

[99] The Panel set out the Appellant’s explanation for writing the letter at paragraph 338:

“His position is that the letter was in pure form, religious discussion or political

debate. He states that his letter was rhetoric as a plea to like-minded Albertans to

form a broad-based political movement in opposition to the provincial

government’s mandate and the initiative spurred on by the Commission to “teach

school aged children in grades k through 12 that homosexuality was normal,

necessary, acceptable and productive.”

Mr. Boissoin states that, given he was an indirect funder of this program through

tax dollars, he had the right to communicate his opinion publicly and chose to do

so in the Red Deer Advocate”.

[100] The Panel concluded that these testimonial claims of the Appellant were not credible.

[101] At paragraph 324F the Panel said the following:

While Mr. Boissoin gave evidence that his statement was a political one, in the

context of a political discussion going on in the community at the time, there was

Page: 25

61Exhibit 8 in the proceedings.

absolutely no evidence of any pre-existing debate on the subject in the letters of

the editor to the Red Deer Advocate prior to Mr. Boissoin’s letter.

There appeared to be no independent circumstances prompting a response of the

nature of the one Mr. Boisson gave.

In fact he was not responding to anything.

Mr. Boissoin testified in cross examination that the CCC was having a political

meeting in the week that followed publication, yet he made no mention of it or

reference to it.

This was closely followed by the Panel’s finding at paragraph 324 I:

Once again, there appeared to be no raging debate in the community on the issue,

at the time the letter was published.

I agree with Dr. Lund’s position that Mr. Boissoin’s letter was not political in

nature, but rather was a moral criticism of homosexuality.

I agree with Dr. Lund that Mr. Boissoin did not mention any specific political

avenue or action in his letter, nor did he even advise the public in his letter about a

political group meeting, which was to be held one week after he published his

letter, even though he had the opportunity to do so.

If Mr. Boissoin was writing a political piece, he would have publicized the

meeting.

Therefore the context of the letter is not within the context of a public debate, in

my view, and the context cannot be considered as part of the debate.

[102] All of these findings were based upon a significant misapprehension of the evidence.

[103] Regarding the absence of pre-existing debate (and presuming that “political expression”

can only be relied upon by an author who writes in response to earlier published commentary) I

do not understand why the Panel restricted a consideration of “pre-existing debate” solely to

previous letters to the editor of a particular newspaper. Such a narrow construct seriously skews

the inquiry concerning the scope of public debate or discussion of public issues. But the factual

error lies in the Panel’s oversight of the Affidavit with attached Exhibit of Joe McLaughlin,

editor of the Red Deer Advocate61 which specifically documents the newspaper reports, columns

Page: 26

62195/8-11.

63Paragraph 345 & 357.

64Supra, para. 40

and letters to the editor pre-existing the publishing of the Appellant’s letter. This material clearly

indicates that there was an ongoing debate concerning the general topic in question.

[104] Secondly, regarding the matter of the Appellant’s letter failing to mention the political

group meeting scheduled to occur one week later, the Panel overlooked the unchallenged

explanation the Appellant gave under oath when asked why the meeting wasn’t mentioned:

“Again, the article was a letter to the editor. It wasn’t an advertisement. It was just

another letter to the editor”.62

[105] Had the Panel been alive to all this evidence, she could not have come to the conclusions

that she did. Her erroneous conclusions stripped the Appellant of any credible, contextual basis

to claim the letter manifested political or religious expression. The proper context of his remarks

is fundamental to the balancing process required by s. 3(2) of the Act. The erroneous handling of

the Appellant’s testimony led the Panel to devalue the integrity of his explanation of the message

as was made clear when the Panel dismissed the letter as merely containing “statements under the

guise of political speech or opinion”.63

[106] In the result I am satisfied that the individual and cumulative errors committed by the

Panel permit of little deference to her various findings of fact and/or application of the law to

those facts. Her errors of law led her to incorrect conclusions. The panel’s decision cannot stand.

[107] I also wish to comment upon an additional contextual consideration when discussing

allegedly hateful or contemptuous speech or writings and the likelihood that they might lead to

discriminatory activity proscribed by the Act.

[108] The federal statutory provision being considered in Taylor required the repetitive delivery

of the hate propaganda. A single message of hate (as is alleged in the case at bar) escaped the

statutory net. The Supreme Court took time to consider how messages of hate may affect some

persons.

[109] Dickson, C.J. in Canada v. Taylor when, referencing the Cohen Committee’s work with

approval, noted the following:

“As well, the Committee observed that hate propaganda can operate to convince

listeners, even if subtly, that members of certain ... groups are inferior.”64

Page: 27

65Ibid., para. 78

66Dennis et al v. United States (1951) 71 S.Ct. 857.

[110] This would suggest that persons likely to be influenced by the hateful message are those

who are susceptible to being unconsciously affected by such messages due to a lack of critical

judgment skills. But in the Alberta Act context, such persons must also be affected to the point

where they are convinced of the truth of the message such that discriminatory actions might be

undertaken.

[111] Further insight was provided by Dickson, C.J. when he cited with approval the expert

testimony of Dr. Ravault who described some affected listeners, in the context of white

supremacist messages, as follows:

“... those in the community who are for one reason or another bewildered or

disaffected by events and forces over which they feel they have no control ... the

authors of hate messages are able through subtle manipulation and juxtaposition

of material to give a veneer of credibility to the content of the messages.”65

[112] In the context of the Alberta Act, a panel is concerned with persons who are at risk of

being manipulated by the hateful message to the point where they might be triggered to act in a

discriminatory way; persons who may be described as marginalized members of society

susceptible to messages of hateful content, lacking in critical judgment faculties to resist the

message’s content and, further, lacking in inhibitions to refrain from reacting in a discriminatory

manner that is specifically prohibited in the Act. There was no evidence led concerning the

existence of such persons within the newspaper’s readership area and therefore no basis to

determine the risk, let alone likelihood, that discriminatory activity might result.

[113] But even if such individuals existed, it is far from clear whether such individuals could

reasonably be presumed to be affected in such a manner by the publishing of one solitary letter to

a newspaper editor. Frankly I am unconvinced of such a possibility occurring. If the contention is

that such a letter, added to an accumulated pile of similarly themed messages, might lend itself to

such a result (as reflected in Dr. Alderson’s testimony - see paragraph 65 of these reasons), then,

at least, evidence of that “pile” should be forthcoming in order to properly examine and

determine context.

[114] In this regard we may learn something from the American jurisprudence. When

considering the meaning of the phrase “clear and present danger” which describes the singular

basis upon which freedom of speech as guaranteed by the First Amendment to the U.S.

Constitution may be restrained, a majority of the U.S. Supreme Court66 adopted the interpretation

of that phrase offered by Chief Judge Learned Hand:

Page: 28

67Ibid, page 868, emphasis mine.

68Ibid, page 881.

“In each case (courts) must ask whether the gravity of the “evil”, discounted by its

improbability, justifies such invasion of free speech as is necessary to avoid the

danger.”67

[115] The underlined phrase identifies the need to closely examine the impugned language with

a critical eye when assessing the likelihood that the danger - the discriminatory activity - will

come to pass. Similarly, in a concurring opinion, Frankfurter J. referred to previous decisions of

Holmes & Brandeis JJ who had dismissed allegedly seditious commentary as only really

amounting to

“expressions of opinion and exhortations ... puny anonymities ... impotent to

produce the evil against which the statute aimed68

These remarks serve to remind one to temper interpretations with an appreciation of the

reality that some language choices fail to deliver any comprehensible message or fail to deliver a

comprehensible message to those who are otherwise able to undertake prohibited discriminatory

activity. In neither situation is there a likelihood that mischief will result and the message can be

safely ignored for the purposes of s. 3(1)(b) of the Act.

[116] For all of the foregoing reasons I am satisfied that the complainant has not established on

a balance of probabilities that the impugned letter violated s. 3(1)(b) of the Act. The Panel erred

in concluding otherwise.

E. The Charter

[117] Assuming I am wrong and the letter did violate s. 3(1)(b), as I have interpreted that

legislation, the appellant argues that the letter is reflective of his s. 2(a) right to freedom of

conscience and religion and, further, falls within the protection of his right to freedom of

expression as set out in s. 2(b) of the Charter. He argues therefore that s. 3(1)(b) is an

unconstitutional restriction upon his Charter rights. Without wishing to demean the appellant’s

claims I think it clear that the real Charter focus would lie with s. 2(b), for his letter is really but a

manifestation of his religious beliefs. Further, the letter actually makes few religious references.

Finally, I believe the appellant can mount the most compelling Charter complaint by relying

upon s. 2(b) and not s. 2(a). Accordingly it is s. 2(b) that will be my focus.

[118] All parties agree with the Crown who properly concedes that s. 3 of the Act infringes s.

2(b) of the Charter. As such, the legislation, as I have interpreted it, must be justified under s. 1

of the Charter or it will fall.

Page: 29

69Edmonton Journal v. A.G. of Alberta [1989] 2 S.C.R. 1326; C.B.C. v. A.G. for New

Brunswick [1991] 3 S.C.R. 459.

70Cherneskey v. Armadale [1979] 1 S.C.R. 1067, para.’s 76 - 79.

71Taylor, supra [1990] 3 S.C.R. 892 and page 32 of 63.

72Supra.

[119] In my opinion the Supreme Court’s decision in Taylor continues to bind me and resolves

the debate in favour of the s.1 justification. I note that the Saskatchewan Court of Appeal in Bell

came to the same conclusion.

[120] The Appellant, however, sought to distinguish Taylor in a number of ways.

[121] I am not persuaded that the added feature in this case of the freedom of the press being

implicated undercuts the application of Taylor. While I acknowledge the vital public role of the

media in gathering and disseminating news69 and the value of letters to the editor in particular,70 I

am not satisfied that the appellant can properly claim some type of super-added right by riding

the newspaper’s constitutional coattails simply because of the latter’s involvement in choosing to

publish the letter. I also fear that if it were otherwise then some mischievous writer may choose

to reconfigure his letter as a newspaper journal solely to claim a greater freedom of expression.

That cannot be what the framers of the Charter intended.

[122] I am satisfied that the remedies provided in the federal legislation and considered by

Taylor bear essential similarities to the Alberta legislation - principally the authority to direct the

offending party to “cease and desist” in the contravention complained. No penalty or fine may be

levied in either statute. To use the description from Taylor, the impugned section is less

confrontational than would be the case with a criminal prohibition. Further, the legislative

framework reflects an encouragement of conciliatory settlements.71

[123] The similarity of statutory language satisfies me that the Supreme Court’s finding of a s. 1

Charter justification is properly applicable to the Alberta statute. I should also observe in passing

that a contrary result would result in the Act not applying to hateful speech linked to

discriminatory practices directed at gays. How strange that result given the Supreme Court’s

decision in Vriend72 which mandated the inclusion of sexual orientation in the Act.

[124] The appellant commends the recent decision of Warman v. Canadian Human Rights

Commission and Lemire, 2009 CHRT 26 (Sept. 2/09). In that case the Commission concluded

that the amendments to the federal statute, principally the present availability of punishment for

the publication, wrought an entirely different legal landscape from that surveyed in Taylor.

Factually, the Lemire Commission also observed that the conciliatory philosophy of the

Page: 30

73Lemire, para.’s 260- 290.

74Ibid., para. 307.

legislation was ignored in that case when, after the offending material had been removed from

the internet and its author sought a mediated resolution, the complainant had refused to

participate in mediation; thus necessitating litigation.

[125] Together, all these factors prompted the Lemire Commission to conclude that the legal

and factual circumstances were vastly different from the Taylor circumstances and that,

accordingly, Taylor no longer applied. Accordingly the Commission found that the section of the

Federal Act restraining hate speech could no longer be justified by s.1 of the Charter73 and found

the legislation to be invalid.74

[126] I am not prepared to adopt Lemire on the simple basis that neither the Alberta Act nor the

factual circumstances of this case are comparable to the statutory and factual circumstances at

play in Lemire. No analogy can be fairly drawn. As previously noted, I am therefore bound by

Taylor and obliged to apply its ratio, and I do so.

F. The Concerned Christian Coalition

[127] The Appellant’s letter to the editor was signed by the Appellant as “Rev. Stephen

Boissoin, Central Alberta Chairman, Concerned Christian Coalition, Red Deer.”

[128] The complaint form filled in and filed by the Respondent described who was being

complained about - “Stephen Boissoin, Executive Director, Concerned Christian Coalition.”

[129] The complaint form had space for the complainant to identify a second party to complain

about but that space remained empty. One might reasonably have concluded therefore that only

one person was being complained about in that complaint. (Further, the record is clear that Dr.

Lund did file a separate complaint against the Red Deer Advocate which was resolved between

those parties.)

[130] Regardless of appearances, the complaint proceeded on the assumption that the

Concerned Christian Coalition, hereafter the C.C.C., had also been complained about. As a result

the C.C.C. brought a preliminary application to be removed as a party.

[131] The parties filed materials with the Panel who issued her decision on September 8, 2006

ruling that the C.C.C. would remain a party.

[132] In her decision she provided an overview of each parties’ submissions. Ultimately she

concluded that since no party had provided evidence, there was no evidentiary basis upon which

she could decide the application.

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75158/5-24.

[133] The Panel observed that there were two issues to be resolved; the first, whether the

C.C.C. was a party in some fashion or another to the impugned letter; the second, whether there

was any connection between the Appellant and the C.C.C. “either through agency, ability to bind,

or other form of legal relationship.”

[134] The Panel held that it was impossible to decide these issues without a full hearing and

therefore dismissed the application.

[135] It is surprising the Panel held that she had no evidence before her having acknowledged

that she had the Appellant’s sworn affidavit. There was no affidavit in response. Nor was the

Appellant examined on his affidavit. Thus she had no contradictory evidence. All she had were

contradictory submissions.

[136] The submissions of the Respondent warrant some comment. In seeking to keep the

C.C.C. joined in the complaint - notwithstanding the complaint form does not make that

especially clear - Dr. Lund relied principally upon the fact of Mr. Boissoin’s executive position

with the C.C.C. as reflected in the style of the signing off on his letter. The simple rejoinder

might be - so what? Even if this suggested that the C.C.C. did agree with what Mr. Boissoin

wrote it can hardly be the basis to properly target the C.C.C. as a respondent to the complaint.

The issue isn’t about the C.C.C.’s sympathies or support of Mr. Boissoin. The issue is whether

the C.C.C. was properly before the Panel on a s. 3(1)(b) complaint.

[137] The Respondent’s second basis to argue some sort of ongoing connection between Mr.

Boissoin and the C.C.C. was to detail radio broadcasts involving the two which occurred in 2005.

With respect that could provide no insight into the C.C.C.’s alleged involvement in the June,

2002 letter.

[138] The Respondent’s third basis to seek the continued involvement of the C.C.C. as a

respondent is of particular concern. Dr. Lund wished the C.C.C. to remain in order to ensure he

had a greater opportunity to recover damages from the C.C.C. since Mr. Boissoin was

impecunious. That is not, of course, a basis for joinder. The liability or responsibility of the

C.C.C. is the required connection - not its financial situation. This is wholly apart from the fact

that the Act would not grant Dr. Lund “damages” in any event.

[139] With respect, there was no basis for the C.C.C. to be a respondent. Regardless, however,

the hearing proceeded with the C.C.C. as a named party.

[140] During the hearing, the Appellant, in cross-examination took full responsibility for his

letter and swore that no one and no group nor organization directed or requested that he write the

letter.75 He swore he wrote the letter on his own behalf as the C.C.C.’s chairman, that he had

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76160/26-161/17.

77175/18-26.

78191/27-192/5.

79Paragraph 360.

never been told he couldn’t publish his own thoughts on matters and that the C.C.C. never

censured or punished him for the letter.76 He admitted that with his letter he was hoping to ride

on the coat tails of the C.C.C.- that is, that he would be associated with some of their political

work.77

[141] The Panel asked some questions of the Appellant, the most pertinent of which had the

Appellant confirming that his views did not necessarily reflect the views of the C.C.C.78

[142] In her decision the Panel made a brief reference to some evidence not particularly

relevant to the issue at hand but made no reference to any of the above testimony - all of which

stood unchallenged.

[143] The Panel then concluded as follows:

“Hearing no evidence from the C.C.C., I find that they too have contravened s. 3

of the Act in the same manner as Mr. Boissoin has contravened s. 3 of the Act.”79

[144] With respect, the Panel’s conclusion is mystifying. She relies on the absence of evidence

from or on behalf of the C.C.C. to come to her conclusion without identifying any evidence that

could support a conclusion that the C.C.C. contravened the Act. The Panel appears to have

worked from the position that the Appellant’s fault, automatically became the C.C.C.’s fault ,

absent evidence to the contrary. This of course ignored the burden of proof reposing on the

complainant to establish his case and, worse, imposed a form of reverse onus upon the C.C.C.

The Panel also failed to explain why the unchallenged sworn testimony of the Appellant on this

point should be wholly ignored.

[145] I find the Panel erred in law in determining the onus of proof and erred in law in fixing

any sort of liability upon the C.C.C. I find the Panel misapprehended or ignored evidence on this

issue before her, such that no deference to her findings is warranted.

[146] Having reviewed the matter in detail I am satisfied that there is no evidence that

establishes the C.C.C. contravened s. 3(1)(b) of the Act.

G. Remedies

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[147] This matter may be resolved fairly quickly given the concessions properly made by the

Respondent.

[148] By brief background the parties had provided written submissions upon the matter of

remedies after the release of the Panel’s decision on November 30, 2007. The Panel then issued

its written decision on remedies on May 30, 2008.

[149] The remedies imposed are set out at paragraph 14 of that decision. All are without legal

foundation or beyond the authority granted by s. 32 of the Act for the following reasons:

a) the direction to cease and desist the publishing of “disparaging remarks about gays

and homosexuals’ is beyond the power of the Panel. “Disparaging remarks” were

not defined by the Panel. But clearly, “disparaging remarks” are remarks much

less serious than hateful and contemptuous remarks and are quite lawful to make.

They are beyond the power of the Act to regulate and the power of the Province to

restrain.

b) the direction to cease and desist “from committing the same or similar

contraventions of the Act” is unlawful as, again,“same or similar contraventions”

are not defined and leave the parties in a state of uncertainty as to what precise

speech is proscribed. To the extent that this “remedy” is linked to (a) it suffers

from the same absence of legal foundation.

c) the direction to issue a written apology to Dr. Lund is beyond the power of the

Panel to order in this case. The classic example, where it is appropriate, would be

an apology to an individual who lost out on an accommodation because of

discrimination. Here Dr. Lund suffered no loss of any kind. He does not qualify to

receive an ordered apology.

d) the order that the Red Deer Advocate be requested to publish the written apology

to Dr. Lund fails on the basis that no written apology could be properly ordered.

The related order that the Red Deer Advocate be requested by the Appellant to

publish a copy of the Remedy Order of the Panel fails on the basis that there is no

authority in the Act which allows a panel to make such an order.

e) the direction that Dr. Lund be awarded $5,000 in damages (assuming “damages”

falls within the scope of s. 32 (1)(b)(v) of the Act) fails on the basis that there was

no evidence that Dr. Lund met the criterion of being a person “dealt with contrary

to this Act”. But further Dr. Lund’s “damages” related to what he described as the

retaliatory lawsuit launched by the Appellant directly related to the complaint,

which lawsuit he says was frivolous and without merit. But Dr. Lund also advised

that the parties agreed to the discontinuance of that lawsuit “without costs.” The

$5000 “damages claim” was asserted to be partial compensation of the more than

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80Appellant’s brief, para. 81.

81Macleans Magazine, September 21, 2009, p. 78.

$30,000 in legal costs he incurred in defending that lawsuit. Bluntly stated, parties

can’t claim for costs and damages in one proceeding relating to costs or damages

said to arise in a different proceeding; particularly where costs were abandoned.

f) the Order directing the payment of expenses incurred by a witness called by Dr.

Lund fails on the basis that there is no authority in the Act to permit such an

Order. In addition to the curious fact that the Panel ruled that she would privately

decide what witness expenses would be honoured and up to a $2000 ceiling

amount, there is the additional fact that Dr. Lund had only sought damages for the

witness’s “pain and suffering”. It’s not clear how that claim was transformed into

the remedy ordered. Regardless neither matter is a permitted remedy under the

Act.

[150] Accordingly, had the Panel correctly decided that the Appellant’s letter violated the Act,

all of the resultant remedies imposed were without legal foundation or beyond the authority

granted by s. 32 of the Act. All remedies are, accordingly, set aside.

H. Troubling Aspects of the Process Leading Up To the Panel’s Decision

[151] A number of matters occurred prior to and during the hearing which warrant comment.

They are offered to assist future Panels.

[152] The Appellant at various points in his oral & written submissions complained of the

unfairness in being hailed before the Panel, in being “prosecuted” by a complainant in that case

and not the Commission, the procedure involved, etc. One might also keep in mind the

compelled involvement of the C.C.C. which I have already found to have been in error.

i. That the Complainant was a Private Prosecutor with a Cause

[153] The appellant describes his experience with the following observation: “The history of

this complaint demonstrates why human rights laws should not be available to private

prosecutors with a cause.”80 This echoes the remarks of columnist Mark Steyn who, in an article

commenting upon the Lemire decision, described the complainant in that case as “serial plaintiff

(and former CHRC employee) Richard Warman, Canada’s self-appointed Hatefinder-General.”81

[154] Hyperbole aside, this case did proceed with the complainant, Dr. Lund, having carriage of

the proceeding. This is permissible pursuant to s. 29 of the Act which mandates the complainant

take over proceedings when the Chief Commissioner decides that a complaint should not have

been initially dismissed, which is what occurred here.

Page: 35

[155] Thus the appellant’s complaint is misplaced. The Act permitted Dr. Lund to take carriage

of his complaint. Further, the Act does not limit a complainant to only one or a restricted number

of complaints. Section 20(1) allows anyone, of any age to make a complaint in that case provided

that person “has reasonable grounds for believing that a person has contravened this Act.”

[156] A complainant’s motivations to complain are, strictly speaking, irrelevant. Whether they

may have “a cause” or whether they appear to be a “serial complainant” is not, strictly speaking,

relevant. If the appellant has a complaint about this process it should be directed at the

legislature, not the court.

ii. Alleged Prejudgment of the Complaint

[157] As may be recalled, the original complaint was dismissed but after review the Chief

Commissioner determined otherwise. This is a process made permissible by the Act. The reasons

for dismissal and for reinstatement of the complaint are not of any moment.

[158] But what is of concern to the Appellant is that in deciding that the complaint against the

Appellant and the C.C.C. should not have been dismissed the Chief Commissioner said the

following in a written decision which issued on May 25, 2005:

Determinations / Reasons: Having completed a documentary file review it is my

view that respondents were at least partially responsible for the publication of the

letter which they wrote and which contained the inflammatory, hateful and

untruthful comments being complained about. (my emphasis)

I believe there is a reasonable basis in the evidence to advance this case to the

panel hearing stage. In accordance with s. 27(1) I shall appoint a hearing panel to

hear the case subject to the complainant wanting to take charge of it.

[159] The Chief Commissioner’s decision was referenced by the Panel at paragraph 5 of her

decision.

[160] Clearly the Chief Commissioner’s decision suggests findings that both the Appellant and

the C.C.C. had violated the Act. Small wonder the Appellant complains of an appearance of bias

on the part of the Panel inasmuch as she was appointed by the Chief Commissioner who had

already given an opinion on the matter. The panel was clearly aware of the Chief

Commissioner’s decision because she referenced it in her own judgment.

[161] Unfortunately the Panel did not express a cleansing self instruction that she had disabused

her mind of both the unfortunate words and apparent prejudgment expressed by the Chief

Commissioner. In such circumstances this was mandatory self instruction I suggest.

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82Section 30(2) of the Act.

[162] The Chief Commissioner’s language was problematic for another reason. It provided an

early signal to the complainant to maintain his complaint and to take carriage of the proceeding.

After all, the Chief Commissioner had essentially told him that his was a provable complaint.

Fairness requires that no party perceives they are at an advantage or disadvantage over the other

party based upon interlocutory communication from the adjudicative body.

[163] The Chief Commissioner should not have said what she did but having done so, the Panel

was obliged to express the required self direction.

iii. Prejudicial Cross-Examination of the Appellant

[164] The Appellant was asked in cross-examination if he had ever referred to the Human

Rights Commission as a “kangaroo court.” He testified that he wasn’t certain he had said this or

whether a Mr. Craig Chandler had said this in their radio program. The Appellant’s objection to

the question because of irrelevancy was overruled by the Panel on the basis that this evidence

would be relevant to the connection between the Appellant and the C.C.C., which was an issue

tied to the question whether the C.C.C. was properly named in the litigation (196/11 - 198/11).

[165] With respect, whether either or both individuals called the commission a “kangaroo

court” was irrelevant to that or any other issue and was highly prejudicial to the Appellant’s

interests at the hearing. If he said it, it might suggest to a reasonable bystander that the Appellant

felt nothing but disdain for the Panel and the Panel’s work.

[166] Again, this was a situation where the Panel ought to have expressed the self instruction

that she had not been prejudiced by this line of inquiry and that she would ignore this testimony

and disabuse her mind of it when coming to her decision.

[167] Similarly the Panel ought to have made some mention of ignoring the controversial and

hurtful innuendo contained in Crown Counsel’s cross-examination of the defence expert which

suggested that the content of the letter had some sort of parallel to Mein Kampf. Being compared

to Adolph Hitler is no minor accusation to be levied against anyone. It is offensive and damning

if not proven.

[168] I hasten to add that in all those situations involving unfortunate language or intemperate

cross-examination, I am not suggesting that the Panel was, in fact, prejudiced against the

Appellant or had prejudged the complaint. I am also aware that a panel is not bound by the usual

evidentiary rules.82 Still it is important to remember that in human rights litigation, where

passions on either side of an issue may easily be raised and where a person’s sense of individual

self is being exposed, probed and critiqued by others of a different bent, a panel must strive to

convey that decisions will be arrived at based solely upon fact, logic and the law. Thus the

benefit of the cleansing, self-instruction cannot be understated.

Page: 37

83Section 37(4)(a).

iv. Disposition of the Respondent’s Complaint against the Red Deer Advocate

[169] In her introduction to her decision the Panel said the following at paragraph 6:

The Red Deer Advocate is not a part of this complaint. Due to a settlement of a

prior human rights complaint against its publication of Mr. Boissoin’s letter, it has

expanded its “letter policy.” Commencing on April 10, 2004, the newspaper now

includes a policy statement that states:

The Advocate will not publish statements that indicate unlawful

discrimination or intent to discriminate against a person or class of

persons, or are likely to expose people to hatred or contempt

because of ... sexual orientation.

[170] If anything needed to be said at all about Dr. Lund’s complaint against the newspaper, the

Panel should have ended at her first sentence. By continuing on as she did, she left the

impression that the newspaper had agreed that it had breached the Act when it published the

Appellant’s letter and had taken steps not to repeat that transgression in the future.

[171] The implication for the Appellant’s case is rather obvious: (i) that the newspaper’s

admission of guilt adversely affects the integrity of the Appellant’s denial dealing, as it does,

with the same document; (ii) that the newspaper’s willingness to go so far as to change its

editorial policy suggests that the newspaper recognized its fault in publishing the letter as being a

matter of some fundamental magnitude. In short, the newspaper was right to mediate, recognize

its error in being complicit in the publishing of the letter and change its behaviours so as not to

err again. The Appellant was wrong in failing to do the same.

[172] This was, in fact, the essence of Dr. Lund’s opening remarks to the Panel. (23/16 - 24/12).

[173] In such circumstances it would have been preferable for the Panel to have expressed some

sort of caution or self-instruction that nothing of what the newspaper did would have any

bearing on her decision involving the Appellant.

I. Costs

[174] The court has the authority to make any order that the Panel could have made under s. 32

of the Act.83 Section 32(2) of the Act permits a Panel to make any order as to costs that it

considers appropriate. In this case the Panel did not do so.

Page: 38

84Alberta (Human Rights & Citizenship Commission Panel) v. Tequila Bar and Grill Ltd.,

[2009] A.J. No. 430 (Q.B.).

85 Para. 81 of Appellant’s brief.

[175] The Appellant’s brief seeks costs from the Respondent on a full-indemnity basis. This

exceptional remedy is vigorously opposed in the Respondent’s brief.

[176] The Appellant cites no authority. The Respondent does.84

[177] The Appellant supports his application by arguing:

(i) The complaint against the Respondent was ill conceived and prosecuted.

But that can be said by every successful litigant. It would hardly qualify

for solicitor-client or indemnity costs.

(ii) That such an order “will send a clear message that the human rights

process should not be available to private citizens with no personal

interest in a case, other than a political cause.”85

Two responses are in order. First, there is no evidence that Dr. Lund was

motivated by a “political cause” in making his complaint. What did

motivate him has been discussed earlier in these reasons. Secondly, the

fact that the Legislature has, in any event, put no complainant criteria in

place has also been earlier discussed. Anyone can make a complaint, even

someone who has not been personally discriminated against. The

Respondent was given the carriage of the proceedings. The Respondent

can hardly be faulted for taking advantage of a lawfully ordained

procedure.

(iii) That the Appellant had to endure the costs associated with defending

himself before the Panel.

But, again, that can be said by every successful litigant and thus does not

qualify for solicitor - client or indemnity costs.

(iv) That the Respondent failed to litigate the Red Deer Advocate.

This strange submission overlooks the fact that the newspaper settled Dr.

Lund’s complaint without any hearing, which is permitted by the Act. It

would have been quite impossible to have then compelled the newspaper

to participate in the subsequent litigation.

Page: 39

(v) That the Appellant had been ordered by the Panel to pay certain financial

awards to the Respondent’s benefit and to refrain from future public

pronouncements.

Beyond the fact that I found all of the Panel’s remedies to be illegal, it is

not readily apparent how the Respondent can be made financially

responsible by way of a costs order for the Panel’s errors.

(vi) That the Respondent used the resources of a public institution, the

University of Calgary to prosecute his complaint.

The only “transgression” I can find here is the complaint that Dr. Lund

used the University’s letterhead in some of his correspondence. He

explained he did so because he didn’t want the Appellant to know his

home address. (61/13 - 62/24) There is nothing to this complaint.

[178] With respect, there is no merit to the Appellant’s request for solicitor-client costs.

Accordingly it is denied.

[179] However I will consider the usual application for costs following the event. I accept the

Respondent’s request that the parties should address the court specifically on this matter.

[180] The Appellant will file a written submission on costs, copied to the Respondent within 10

days of the release of this decision. The Respondent will file a written reply within 5 days of

receipt of the Appellant’s materials. No oral argument will be necessary.

Heard on the 16 & 17th day of September, 2009.

Dated at the City of Calgary, Alberta this 3rd day of December, 2009.

E.C. Wilson

J.C.Q.B.A.

Page: 40

Appearances:

Gerald D. Chipeur, Q.C

for the Appellant

Patrick Nugent/Jo-Ann Kolmes

for the Respondent

David Kamal

for the Intervener Attorney General of Alberta

John V. Carpay

for the Intervener Canadian Constitution Foundation

J.P. Peacock, Q.C./Janet L. McCready

for the Intervener Canadian Civil Liberties Association