Hate Speech and Human Rights in Alberta

By: Jennifer Koshan

PDF Version: Hate Speech and Human Rights in Alberta

Motion commented on: Motion 502 (Alberta Legislative Assembly, March 17, 2014)

It was a tumultuous time in the Alberta Legislature last week, culminating with the resignation of Alison Redford as Premier (for an excellent recap see Susan on The Soapbox).  And of course there were significant events at the national level as well, with the resignation of Jim Flaherty as finance minister and the Supreme Court of Canada’s decision that Marc Nadon was ineligible for appointment to its ranks.  Readers therefore may be forgiven if they missed last week’s debate in the Alberta Legislature on the repeal of section 3(1)(b) of the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA).

Section 3(1)(b) provides that “No person shall publish, issue or display … before the public any statement, publication, notice, sign, symbol, emblem or other representation that … is likely to expose a person or a class of persons to hatred or contempt because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or class of persons.” The debate about repeal occurred in the context of a motion introduced by Wildrose Justice Critic Shayne Saskiw, which stated: “Motion 502: Be it resolved that the Legislative Assembly urge the government to introduce legislation to repeal section 3(1)(b) of the Alberta Human Rights Act to restore the freedom of speech of all Albertans” (Alberta Hansard, March 17, 2014 at 280).

Previous posts on ABlawg have discussed judicial decisions concerning the constitutional validity and application of section 3(1)(b) (Lund v Boissoin, 2009 ABQB 592, aff’d on other grounds 2012 ABCA 300 (see here and here)), as well as the justifiability of a similar provision in the Saskatchewan Human Rights Code, SS 1979, c S-24.1 as a reasonable limit on freedom of expression (Saskatchewan Human Rights Commission v Whatcott, 2013 SCC 11 (see here)). In spite of decisions upholding the constitutionality of human rights based hate speech provisions, however, the political discourse around repeal has not abated (see e.g. here and here). The arguments of the critics are often tied to broader allegations about human rights commissions and tribunals as “kangaroo courts” (see e.g. here). Most recently, the federal government repealed the equivalent hate speech provision in the Canadian Human Rights Act, RSC 1985, c H-6, section 13, which will take effect in June 2014 (see An Act to amend the Canadian Human Rights Act (protecting freedom)).

In support of Motion 502, Saskiw referred to section 3(1)(b) as “hurt feelings legislation”, and noted that (now former) Premier Redford had promised to repeal the section during her leadership campaign on the basis that it interfered with freedom of expression.  He also noted that hate speech is a criminal offence under the Criminal Code, RSC 1985, c C-46, section 319, and argued that this is sufficient protection. Moreover, criminal complaints will be investigated by the RCMP and adjudicated by “real Queen’s Bench judges” (as opposed to what he called “state-controlled commissions [which] are not part of our justice system”).   He also claimed that “If we repeal paragraph 3(1)(b), we have the opportunity to make Alberta the freest place in Canada” (Alberta Hansard, March 17, 2014 at 280-281).

Justice Minister Jonathan Denis spoke next. He noted that “section 3 complaints to the Human Rights Commission are relatively rare”, with less than 1 per cent of all complaints citing section 3 in 2012, and only 1 or 2 complaints a year citing section 3 before that.  He also referred to the Alberta Court of Appeal decision in Lund, which criticized the language of section 3(1)(b), noting that its “lack of clarity will cast a chill on the exercise of the fundamental freedoms, such as freedom of expression and religion.” (2012 ABCA 300 at para 94).  Minister Denis questioned “whether or not having a section like this works against its intended purpose by drawing more attention to the hateful views of an individual than if they had not been prosecuted” (though it should be noted that individuals are not actually “prosecuted” under the AHRA). He pointed out that organizations such as the Rocky Mountain Civil Liberties Association and the Sheldon Chumir Foundation, “hardly bastions of right-wing thought”, support changes to section 3 of the AHRA. Although he recounted the hatred experienced by his German family members in the 1940s and 1950s, which led to them leaving their community in Saskatchewan, Minister Denis indicated that he would support the motion. (Alberta Hansard, March 17, 2014 at 281-282).

New Democrat Opposition House Leader Rachel Notley then weighed in to oppose Motion 502. She quoted from the Supreme Court decision in Whatcott, where the Court said that “Hate speech is antithetical to [democracy] in that it shuts down dialogue by making it difficult or impossible for members of the vulnerable group to respond, thereby stifling discourse.”  (2013 SCC 11 at para 117).  Notley also argued that Motion 502 was part of a “three-plank effort … through the combined efforts of this Conservative government and the Wildrose opposition, to undermine human rights in this province.” She referred to the other planks in this strategy as the introduction of section 11.1 of the AHRA in 2008, which requires school boards and teachers to notify students of curriculum content involving issues of sexuality, sexual orientation and religion, as well as the failure of the government to include reference to the Canadian Charter of Rights and Freedoms in the preamble to the Education Act. She argued that the criminal response to hate speech was not an adequate alternative, as the standard of proof is much higher, it is punitive rather than remedial, and it operates at the discretion of the police, to whom only a fraction of hate speech cases are reported. She also noted that a “broad range of different minority communities” were present in the Legislature for the debate, who “concluded that section 3 in our human rights code continues to serve a very, very important purpose in our province and that its removal will result in more discrimination, more discriminatory acts, and fewer opportunities to resolve those issues.” (Alberta Hansard, March 17, 2014 at 282-283, and see the blog Disability Action Hall).

Then followed Raj Sherman, Leader of the Liberal Opposition, who spoke about the hatred he had experienced as a child immigrant to Canada in the 1970s and how words have the power to do serious harm. His speech is available on YouTube:  http://www.youtube.com/watch?v=lUpJuZkcDjE.  Sherman spoke of a competing freedom to freedom of expression:  “we must be allowed to walk freely without being called bad names and horrible names that promote hatred and contempt.” He urged all members of the Legislature to vote against the motion, and closed by stating: “I would say that all of those who aren’t coloured in this Assembly, who aren’t visibly different – you know what, I’m not even going to stand up and vote on this, Mr. Speaker. I think everyone else who isn’t a visible minority should be the ones standing up fighting for this.” (Alberta Hansard, March 17, 2014 at 283-284).