The Alberta Court of Appeal delivered an interesting decision on the meaning and application of prohibition on “hate speech” in the province’s human rights legislation. The case, Lund v. Boissoin, 2012 ABCA 300, concerned the publication in a Red Deer newspaper of a letter to the editor urging citizens to resist “the homosexual agenda”, and in particular the teaching of homosexuality’s acceptability in schools. The letter was intemperate and offensive. Two weeks after its publication, a gay teenager was attacked in Red Deer. Outraged by the letter and the attack, an activist brought a complaint against the author of the letter and an organization of which he was the head to the Alberta Human Rights and Citizenship Commission, saying that it contravened the provision of Alberta’s human rights legislation that prohibits publishing or causing the publication of a statement “likely to expose a person or a class of persons to hatred or contempt” on the basis of a personal characteristic, such as sexual orientation. Eventually, a tribunal found in the complainant’s favour, and ordered the respondents to apologize and to pay damages. That decision was then overturned by the Court of Queen’s Bench. The complainant appealed.
Importantly, the parties did not raise constitutional issues on appeal. The court suggests quite strongly that these issues deserve to be debated. It wonders whether the hate speech prohibition is intra vires the province, in light of the “Implied Bill of Rights” cases holding that Parliament has the exclusive power to regulate (political) speech, and whether they are in keeping with the Charter’s guarantee of freedom of expression. But since the parties do not argue these issues, the court cannot decide them, much as―one suspects―it would like to. As McGill’s prof. Fabien Gélinas writes in a paper on “Virtual Justice and the Rule of Law,” “in all but the exceptional cases, [the judge] can only answer those questions that someone cares to ask him―which are not by any means always those which he yearns to answer.”
Proceeding on the basis that the statute is constitutional, the court nonetheless must interpret it to decide what “expos[ing] a person or a class of persons to hatred or contempt means.” It must also interpret an exception to the general prohibition on publishing statements having that effect, which provides that “nothing” in the prohibition “shall be deemed to interfere with the free expression of opinion on any subject.” And it must decide whether the respondent’s letter fits the scope of the prohibition and the exception.
On the interpretation of the general prohibition, one issue was whether, in order to come within its scope, speech had to have some sort of nexus to actual discrimination or infringement of human rights. The judgment below reached this conclusion, and the provincial Attorney General, who intervened, supported it. But the Court of Appeal rejects it firmly, holding that it had no basis in the language of the statute. The narrower interpretation is the result of a “reading down” of the statute, a narrow reading designed to preserve its constitutionality where a broader one would be unconstitutional. But here there is no conclusion―though there is doubt―that the broader, “plain” reading of the legislation is unconstitutional, so the reading down is uncalled for. The other issue, of course, is the meaning of the phrase “hatred or contempt.” Relying the Supreme Court’s interpretation of the same words in equivalent federal legislation, the Court of Appeal finds that it must be a narrow one, encompassing only extreme ill-will.
Applying this interpretation to the respondent’s letter, the Court holds that it does not reach the level of extremeness prohibited by the statute. A statement alleged to expose people to hatred or contempt must be considered in context. In particular, it is important to keep in mind that in a free society, it is permissible to express opinions on the morality of others’ behaviour―and thus to say that a person’s behaviour is immoral. Here, the context was a live public debate on the appropriateness of schools’ teaching children about homosexuality. As part of this debate, an independent newspaper concluded that the views the letter expressed deserved to be brought to the public’s attention―and that the readers’ critical response to it would be enough to promote tolerance. Thus
“[w]hether offensive or not, the letter was perceived to stimulate and add to an ongoing public debate on matters of public interest, as distinct from hate propaganda which serves no useful function and has no redeeming qualities” (par. 70).
It is also the expression of an opinion on the morality of certain behaviour, which is a matter of public debate.
“Frequently, expression on these topics arises from deep seated religious conviction , and is not always temperate. It is unfortunate when some choose to express their opinions in a crude and offensive manner, but sincerely held convictions sometimes give rise to extreme polemical speech. Freedom of speech does not just protect polite speech” (par. 72).
Ultimately, says the court, reasonable people will differ about what amounts to hate speech and what doesn’t. But in its view, the respondent’s letter is nothing more than “an overstated and intemperate opinion of a writer whose extreme and insensitive language undermines whatever credibility he might otherwise have hoped to have” (par. 77).
Although it thus concludes that the letter does not come within the scope of the prohibition on hate speech, the Court considers the meaning of the exception for expression of opinions. The trouble, in its view, is that it seems to be so broad as fully contradict the general prohibition. In order to avoid interpreting one provision so as to cancel out the effect of the other, the court below blended the two is a sort of balancing exercise, treating the exception as a reminder of the importance of freedom of expression. The Court of Appeal holds that this is not the right approach. The statute’s words must be given their full effect. The exception cover all statements of opinion―but not purported statements of fact. The letter at issue, the Court holds, is an expression of opinion, and thus covered by the exception.
In effect, the Court interprets the hate speech provisions of Alberta’s human rights legislation as a prohibition on the more extreme forms of group defamation. The distinction between purported statements of fact and opinion comes straight from the law of defamation―though the law of defamation is very wary of the idea of group defamation, requiring the plaintiff to be identifiable as the subject of the defamatory statement. And there is another importance nuance in the law of defamation. It only protects statements of opinion for which accurate factual context is either provided with the statement, or is deemed to be generally known. The Court doesn’t seem to import this limitation in its interpretation of the hate speech provisions.
Overall, this case illustrates, once again, the problems with attempts to prohibit hate speech. I have some sympathy for the impulse behind the attempts (defended, for example, by Jeremy Waldron in this column). But when it comes to transforming the good intention into statutory language, the outcome tends to be hopeless vague. And judicial interpretation results in the statutes being vanishingly narrow, yet at the same time still desperately unclear. Whether or not it is philosophically attractive, hate speech legislation is not a success.